Mandatory Prepayments. (a) In the event and on such occasion that: (i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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. (b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement. (c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000. (d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion. (e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding. (f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 4 contracts
Samples: Credit Agreement (NBC Acquisition Corp), Credit Agreement (Nebraska Book Co), Credit Agreement (NBC Acquisition Corp)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure When any Borrower sells or otherwise disposes of any Lender exceeds 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 Lender’s Revolving Credit Commitment; or
sale, such repayments to be made promptly but in no event more than three (ii3) Business Days following receipt of such net proceeds, and until the Total Exposure exceeds 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 lesser of terms and conditions hereof. Such repayments shall be applied (x) Total Revolving Credit Commitments first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shallsecond, to the extent remaining Advances (including cash collateralization of the balance of such excess, replace all Obligations relating to any outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established accordance with the Administrative 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 for may determine, subject to Borrowers’ ability to re-borrow Revolving Advances in accordance with the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agenthereof.
(b) If Notwithstanding the foregoing, with respect to any Indebtedness 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 incurred by SuperHoldings, Holdings, continuing and the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period Borrowing Agent shall be applied on the date of have notified Agent within two (2) Business Days following receipt of such Net Cash 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 set 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 2.9(d), provided, however, that the foregoing requirements 8.2 or 8.3 (as applicable) of this paragraph Agreement have been satisfied and (biii) Borrowers agree to use the proceeds of the Revolving Advances to pay the cost of such cost of reinvestment. The foregoing shall not apply be deemed to be implied consent to any Indebtedness incurred in accordance with Section 7.2 as in effect on Disposition or other transaction prohibited by the date terms and conditions of this AgreementAgreement or any Other Document.
(c) If on any date SuperHoldings, Holdings, Borrowers shall prepay the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration outstanding amount of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered Term Loans in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to twenty-five percent (25%) of Excess Cash Flow for each fiscal year beginning with the Reinvestment Prepayment Amount with respect 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 relevant Reinvestment Event end of each such fiscal year, which amount shall be applied as set forth to the outstanding principal installments of the Term Loan in Section 2.9(d); and provided further, the inverse order of the maturities thereof. In the event that notwithstanding the foregoing, such Net Cash Proceeds which 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 a Reinvestment Notice adjustment when the financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be required to be applied deemed a waiver of any rights Agent or Lenders may have as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment a result of the Loans shall exceed $1,000,000failure by Borrowers to deliver such financial statements.
(d) All such amounts described in Sections 2.9(bIn the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) and by Borrowers, Borrowers shall, no later than three (c3) (subject to Business Days after the terms receipt by Borrowers of the Intercreditor Agreementcash 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 any insurance such incurrence or condemnation proceedsissuance of Indebtedness. Such repayments will be applied (x) first, to the extent they arise from casualties 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 losses to equipmentEvent of Default has occurred and is continuing, fixtures and real property) such repayments shall be appliedapplied 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), first (ii) used to prepay any Protective Advances that 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 outstanding, pro rata, second applied to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction 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 Total Revolving 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 Commitments; in accordance with the provisions of Section 3.2(b), provided however that during an if no Default or Event of DefaultDefault has occurred and is continuing, all such amounts 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 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion6.6.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
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. (ai) In the event and on such each occasion that:
(i) that any Net Proceeds are received by or on behalf of the Exposure Borrower or any Restricted Subsidiary in respect of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) Prepayment Event following the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof)Funding Date, the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of day such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event are received (or, in the case of a Prepayment Event described in clauses (a) or (b) of the definition of the term “Prepayment Event,” within three Business Days after such Net Proceeds are received), prepay Term Loans in an amount equal to 100.0% of such Net Proceeds; provided that, in the case of any event described in clauses (a) or (b) of damage by casualtythe definition of the term “Prepayment Event,” if the Borrower shall, prior to the date the repair or restoration of the relevant Property required prepayment, deliver to the Administrative Agent a certificate of an Authorized Officer of the Borrower to the effect that the Borrower intends to cause the Net Proceeds from such event (or a portion thereof specified in such certificate) to be applied within 365 days after receipt of such Net Proceeds to acquire real property, equipment or other tangible assets to be used in the business of the Borrower or the Restricted Subsidiaries, or to consummate any Permitted Acquisition (or any other acquisition of all or substantially all the assets of (or all or substantially all the assets constituting a business unit, division, product line or line of business of) any Person) permitted hereunder, and certifying that no Unmatured Default has occurred and is completed) and a Cash Dominion Period continuing, then exists, then, unless a Reinvestment Notice no prepayment shall be delivered required pursuant to this paragraph in respect thereof, of the Net Proceeds from such event (or the portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent of any such Net Proceeds that have not been so applied by the end of such 365-day period (or within a period of 180 days thereafter if by the end of such initial 365-day period the Borrower or one or more Restricted Subsidiaries shall have entered into an agreement with a third party to acquire such real property, equipment or other tangible assets, or to consummate such Permitted Acquisition or other acquisition, with such Net Proceeds), at which time a prepayment shall be applied on such date as set forth required in Section 2.9(d); 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 Net Proceeds that have not been so applied (and no prepayment shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which extent the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and that are not previously applied toward the prepayment of the Loans shall reinvested in accordance with this Section does not exceed $1,000,000.
(d) All such amounts described 5,000,000 in Sections 2.9(b) and (c) (subject any fiscal year); provided, further that to the terms extent any such Net Proceeds shall be received in respect of the Intercreditor Agreementassets owned by a Loan Party, such Net Proceeds may be reinvested only in assets owned by a Loan Party or, in the case of a Permitted Acquisition or other acquisition, by any insurance or condemnation proceedsPerson that shall become a Subsidiary Guarantor upon the consummation thereof (other than, in each case, Equity Interests in Foreign Subsidiaries, except to the extent they arise such Net Proceeds shall have resulted from casualties the sale of Equity Interests in one or losses more Foreign Subsidiaries).
(ii) In the event that the Borrower has Excess Cash Flow for any fiscal year of the Borrower, commencing with the fiscal year ending September 30, 2016, the Borrower shall, not later than ninety (90) days following the end of such fiscal year, prepay Term Loans in an amount equal to equipment, fixtures and real propertythe excess of (x) shall be applied, first an amount equal to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay ECF Percentage multiplied by Excess Cash Flow for such fiscal year over (y) the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance prepayments of Term Loans pursuant to Section 2.04(a)(i) during such fiscal year (other than any such prepayment made with the proceeds of Indebtedness).
(iii) Prior to any optional or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determinedmandatory prepayment of Term Loan Advances under this Section, the allocation and application of those proceeds shall be determinedBorrower shall, subject to the Intercreditor next sentence, specify the Term Loan Advance or Term Loan Advances to be prepaid in the notice of such prepayment. In the event of any mandatory prepayment of Term Loan Advances from a Prepayment Event under clauses (a) or (b) of the definition thereof made at a time when Term Loan Advances of more than one Class remain outstanding, the Borrower shall select Term Loan Advances to be prepaid so that the aggregate amount of such prepayment is allocated among the Term Loan Advances pro rata based on the aggregate principal amounts of outstanding Term Loans of each such Class; provided that to the extent provided in the relevant Incremental Term Loan Amendment or Extension Agreement, any Class of Incremental Term Loans or Extended Term Loans may be paid on a pro rata basis or less than pro rata basis with any other Class of Term Loans. Any prepayment of Loans from a Prepayment Event described in clause (c) of the definition of “Prepayment Event” shall be applied to the Class or Classes of Loans selected by the Borrower.
(iv) Notwithstanding the foregoing, any Term Lender may elect, by notice to the Administrative Agent by telephone (confirmed by hand delivery or facsimile) at least one Business Day (or such shorter period as may be established by the Administrative Agent) prior to the required prepayment date, to decline all or any portion of any prepayment of its Term Loans pursuant to this Section 2.04 (other than an optional prepayment pursuant to paragraph (a) of this Section or a prepayment pursuant to clause (c) of the definition of “Prepayment Event,” which may not be declined), in its Permitted Discretionwhich case the aggregate amount of the payment that would have been applied to prepay Loans but was so declined may be retained by the Borrower and shall constitute “Declined Proceeds.”
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(fv) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile hand delivery or by other electronic transmissionfacsimile) of any optional prepayment and, to the extent practicable, any mandatory prepayment hereunder (iA) in the case of prepayment of a Eurocurrency Eurodollar Rate Loan, not later than 10:00 A.M.11:00 a.m., New York City time, three Business Days before the date of prepayment, prepayment or (iiB) in the case of prepayment of a Base Floating Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M.a.m., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and date, the principal amount of each Borrowing Advance or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, ; provided that a notice of optional prepayment of Advances pursuant to paragraph (a) of this Section may state that such notice is conditioned upon the receipt occurrence of the proceeds from the issuance of other Indebtedness one or any other eventmore events specified therein, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified datedate of prepayment) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) notice, the Administrative Agent shall advise the Lenders of the applicable Class of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Advance shall be in an amount that would be permitted in the case of an advance of a Borrowing an Advance of the same Type as provided in Section 2.1. Each prepayment 2.02, except as necessary to apply fully the required amount of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.mandatory
Appears in 4 contracts
Samples: Credit Agreement (Energizer SpinCo, Inc.), Credit Agreement (Energizer Holdings Inc), Escrow Agreement (Energizer Holdings Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[Intentionally Omitted].
(b) If Subject to clause (c) below, upon receipt by any Indebtedness shall be incurred by SuperHoldings, HoldingsLoan Party of Net Cash Proceeds (but only if at the time of such receipt the Available Credit is less than 25% of the Aggregate Borrowing Limit at such time), the Borrower shall within one Business Day after such receipt prepay the Loans (or any provide cash collateral in respect of their respective Subsidiaries, Letters of Credit as set forth in clause (d) below) in an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph clause (bd) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementbelow.
(c) If Notwithstanding clause (b) above, as long as no Event of Default shall have occurred or be continuing on the date Net Cash Proceeds are received by any date SuperHoldings, HoldingsLoan Party, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth so apply an amount equal to Net Cash Proceeds arising from a Reinvestment Event to the extent that all Net Cash Proceeds from all Reinvestment Events do not exceed $50,000,000 (in Section 2.9(d) until the date upon which the aggregate since the Closing Date) and are actually used (or have been contractually committed to be used) to consummate a Permitted Acquisition or to purchase replacement or fixed assets (in the case of an Asset Sale) or repair or replace (in the case of a Property Loss Event) the sold, damaged or taken property within 180 days of the receipt of such Net Cash Proceeds by a Loan Party and, pending application of such proceeds, the Borrower has either (i) paid an amount equal to such Net Cash Proceeds to the Administrative Agent to be held by the Administrative Agent in a Cash Collateral Account designated by the Administrative Agent or (ii) applied an amount equal to such Net Cash Proceeds in repayment of the Revolving Loans and the Administrative Agent shall have established an Availability Reserve in the amount of such repayment, which reserve shall xxxxx on the Reinvestment Prepayment Date applicable to such Net Cash Proceeds or earlier to the extent that Revolving Loans up to the amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, are used as set forth in the case of any insurance or condemnation proceedsReinvestment Notice with respect thereto; provided, however, that to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, asset subject to such Asset Sale or Property Loss Event constituted Collateral, any replacement, fixed or alternative assets acquired with Net Cash Proceeds shall, upon acquisition thereof by a Warnaco Entity, be subject to a perfected Lien in favor of the Intercreditor Agreement, by the Administrative Collateral Agent, in its Permitted Discretion.
(e) The Borrower agrees that during for the period from September 1 through December 31 benefit of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (andSecured Parties, in each case, having the case priority described in Section 4.20 of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date this Agreement and the principal amount of each Borrowing or portion thereof to be prepaid andCollateral Documents (but, in the case of a mandatory prepaymentPermitted Acquisition, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest only to the extent required by Section 2.18clause (v) of the definition thereof); provided further, however, in the event an Event of Default has occurred and is continuing after the provisions in this clause (c) become operative, the Administrative Agent may, or shall at the direction of the Requisite Lenders, apply all amounts in the Cash Collateral Account referred to above to the Obligations.
(d) Subject to the provisions of clause (c) above and Section
Appears in 4 contracts
Samples: Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/), Credit Agreement (Warnaco Group Inc /De/)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[Reserved].
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e); provided, that, 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 a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion[Reserved].
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans on a pro rata basis as to such remaining installments and in accordance with Sections 2.3 and 2.18(b) (provided that any Term Loan Lender may decline any such prepayment (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 Loan 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 and Swingline Loans in accordance with Section 2.15(c) (with no corresponding permanent reduction in the Revolving Commitments); and third, to the extent of any residual, if no Term Loans, Revolving Loans or Swingline Loans remain outstanding, to the replacement of outstanding Letters of Credit and/or 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 established with the Administrative Agent for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender. 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 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 agrees that during shall deliver to the period from September 1 through December 31 Administrative Agent and each Term Loan Lender notice of each calendar year there prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a period “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of at least 30 consecutive days during which there are no Loans outstandingsuch prepayment and (iii) the options of each Term Loan Lender to (x) decline or accept its share of such prepayment and (y) to accept Declined Amounts. Any Term Loan 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 three (3) Business Days prior to the Mandatory Prepayment Date.
(f) The Borrower shall notify deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction and (ii) to the extent practicable, at least ten (10) days prior written notice of such prepayment or reduction (and the Administrative Agent (and, in shall promptly provide the case same to each Lender). Each notice of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date or reduction date, the Type of each Loan being prepaid and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, prepaid.
(g) No prepayment fee shall be payable in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt respect of any such notice (other than a notice relating solely mandatory prepayments made pursuant to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in this Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.12.
Appears in 4 contracts
Samples: Credit Agreement (Appian Corp), Credit Agreement (Appian Corp), Credit Agreement (Appian Corp)
Mandatory Prepayments. (ai) [Reserved].
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds and, during any Scheduled Wind-Down Period, Net Proceeds of all ordinary course asset sales, in each case, in excess of $15,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% (such percentage, as it may be reduced as described below, the “Net Proceeds Percentage”) of such Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) so long as no Scheduled Wind-Down Period is then in effect and the Borrower does not notify the Administrative Agent in writing prior to the date any such prepayment is required to be made that it does not intend to (I) reinvest (including to make capital expenditures) the Subject Proceeds in the business (other than Cash or Cash Equivalents) (including, without limitation, investments in CRE Finance Assets and Real Estate Investments) of the Borrower or any of its Restricted Subsidiaries, then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (x) the Subject Proceeds are so reinvested within 18 months following receipt thereof, or (y) the Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 18 month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 18 month period (it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above in this clause (I)) (provided that, with respect to this clause (I), at the Borrower’s election by written notice to the Administrative Agent, expenditures and investments occurring prior to receipt of the relevant Subject Proceeds (and not otherwise applied in respect of any other prepayment required by this clause (ii)), but after the definitive agreement governing the transaction from which such Subject Proceeds were generated was entered into, may be deemed to have been reinvested after receipt of such Subject Proceeds) or, (II) apply the Subject Proceeds to prepay amounts outstanding under any (x) Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any (y) CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary), then, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent the Subject Proceeds are so applied within 18 months following receipt thereof (it being understood that if the Subject Proceeds have not been so applied prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so applied to repay such amounts as set forth above in this clause (II)); provided that, during any period during which the scheduled expiration of the Borrower’s existence in accordance with its organization documents would be within 12 months (a “Scheduled Wind-Down Period”), 100% of the Net Proceeds of all ordinary course and non-ordinary course asset sales shall be applied to repay the Term Loans or any Asset Financing Facility secured directly or indirectly by CRE Finance Assets or any CRE Financing (or in the case of any such proceeds relating to a sale or other event with respect to a Restricted Subsidiary that is not a Wholly Owned Subsidiary, to pay Indebtedness of such Subsidiary) without reinvestment rights and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay any other Indebtedness that is secured on a pari passu basis with the Obligations by the documentation governing such other Indebtedness (such other Indebtedness, “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the Prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans to the extent required in accordance with the terms of this Section 2.11(b)(ii). Notwithstanding the foregoing, except during a Scheduled Wind-Down Period, (x) the Net Proceeds Percentage shall be 50.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.75 to 1.00 and greater than 0.50 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%), (y) the Net Proceeds Percentage shall be 25.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.50 to 1.00 and greater than 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100.0%) and (z) the Net Proceeds Percentage shall be 0.0% if the Total Debt to Equity Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 0.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving pro forma effect to such prepayment at a rate of 100%).
(iii) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; that the Borrower shall repay or any of its Restricted Subsidiaries receives Net Proceeds from the Revolving Credit Loans issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries after the Closing Date (other than Indebtedness that is permitted to be incurred under this Agreement including Section 6.01, except to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess relevant Indebtedness constitutes (because L/C Obligations constitute A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion thereofof any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental Term Loans incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of any Class of Term Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms hereof or thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, to promptly upon (and in any event not later than five Business Days thereafter) the extent of the balance receipt thereof of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred Net Proceeds by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Cash Insurance/Condemnation Proceeds thereof are received during by any Cash Dominion Period Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or would reasonably be expected to result in, a material risk of personal, civil or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being agreed that, solely within 365 days following the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation) (it being understood that if the repatriation of the relevant Subject Proceeds is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal, civil or criminal liability for the Persons described above, in either case, an amount equal to such Subject Proceeds will be promptly applied on (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) to the date repayment of the applicable Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) to the extent that the relevant Subject Proceeds are received by any joint venture, in each case, solely with respect to any joint venture that is a Restricted Subsidiary, for so long as the distribution to the Borrower of such Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture by any provision not entered into in contemplation of the Closing Date or of receipt of such Net Cash Subject Proceeds; it being understood that if the relevant prohibition ceases to exist, the relevant joint venture that is a Restricted Subsidiary will promptly distribute the relevant Subject Proceeds, and the distributed Subject Proceeds as set forth will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the applicable Term Loans pursuant to this Section 2.9(d2.11(b) to the extent required herein (without regard to this clause (iv)), provided, however, and
(C) to the extent that the foregoing requirements relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of this paragraph any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(ii) above would result in a material adverse Tax liability (btaking into account any withholding Tax) shall not apply (the amount attributable to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldingssuch Foreign Subsidiary, Holdingsa “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration other intercompany distribution) of the relevant Property is completed) and Subject Proceeds, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding material adverse tax consequence within the foregoing, on each Reinvestment Prepayment Date365 day period following the event giving rise to the relevant Subject Proceeds, an amount equal to the Reinvestment Prepayment Amount with respect Subject Proceeds to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided furtherextent available, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward pursuant to this clause (C), shall be promptly applied to the prepayment repayment of the applicable Term Loans shall exceed $1,000,000pursuant to Section 2.11(b) as otherwise required above.
(dv) All such amounts described in Sections 2.9(b) and (c) (subject to At the terms of the Intercreditor AgreementBorrower’s option, in the case of any insurance or condemnation proceedsTerm Lender may elect, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on at or prior to the time and in the manner specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) by the Administrative Agent shall advise Agent, prior to any prepayment of Term Loans required to be made by the Lenders Borrower pursuant to Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower and will be added to the Available Amount as set forth in clause (a)(v) of the contents definition thereof. Each partial voluntary ; provided that, for the avoidance of doubt, no Lender may reject any prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in made under Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest 2.11(b)(iii) above to the extent required by that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of the Term Loans pursuant to Section 2.186.01(p), (x) Incremental Term Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22, (y) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), and/or (z) Incremental Equivalent Debt incurred to refinance all or a portion of the Term Loans in accordance with the requirements of Section 6.
Appears in 4 contracts
Samples: Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.), Term Loan Credit Agreement (Claros Mortgage Trust, Inc.)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, date the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in with respect thereof, to an amount equal to 75% of such Net Cash Proceeds (“Allocated Proceeds”; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such date as set forth in Section 2.9(d); provided, that, notwithstanding proceeds are received toward the foregoingprepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall exceed $1,000,000.
in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (d) All such amounts described in Sections 2.9(bi) and (cii) (subject above, to the extent that the terms of the Intercreditor Agreementdocumentation for any First Lien Notes require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes pursuant to a mandatory offer to purchase such First Lien Notes, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall such Allocated Proceeds may be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If 2.9(c) and purchase First Lien Notes on a pro rata basis based on the precise amount respective amounts of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures Term Loans and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans First Lien Notes then outstanding.
(fb) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Debt Incurrence Prepayment Event then with respect to an amount equal to 100% of such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The Borrower shall notify the Administrative Agent (and, in the case application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a Swing Line Loan, pro rata basis to each Class of Term Loans then outstanding (except to the Swing Line Lender) by telephone (confirmed by facsimile extent that any Incremental Activation Notice for any Class of Incremental Term Loans or by other electronic transmission) Extended Term Loans provide that such Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any prepayment hereunder (i) in the case of amounts required to be applied to a prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (iiTerm Loans pursuant to Section 2.9(b) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify made, at the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower Borrower’s option (by notice to the Administrative Agent Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or prior (ii) to the specified dateTerm Loans of each Class in direct order of maturity (based on the respective Term Maturity Dates for such Classes) and, if more than one Class of Term Loans has the same Term Maturity Date, on a pro rata basis between such condition is not satisfiedClasses of Term Loans based on the respective principal amount of such Classes of Term Loans then outstanding. Promptly following receipt Amounts required to be applied to the prepayment of Term Loans of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Class shall be in an amount that would be permitted in the case applied first, to ABR Loans of an advance such Class and, second, to Eurodollar Loans of a Borrowing of the same Type as provided in Section 2.1such Class. Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under this Section 2.9 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 4 contracts
Samples: Credit Agreement (Charter Communications, Inc. /Mo/), Credit Agreement (Charter Communications, Inc. /Mo/), Incremental Activation Notice (Charter Communications, Inc. /Mo/)
Mandatory Prepayments. (a) In On each date on which Lender actually receives a distribution of Net Proceeds, and if Lender exercises its right provided for herein not to make such Net Proceeds available to Borrower for a Restoration, one hundred percent (100%) of such Net Proceeds shall be applied to the event and outstanding principal balance of the Loan, together with interest accruing on such occasion that:
amount calculated through the next Monthly Payment Date. Any prepayment received by Lender pursuant to this Section 2.4.2 on a date other than a Monthly Payment Date shall be held by Lender as collateral security for the Loan in an interest bearing account, with such interest accruing to the benefit of and payable to Borrower, and shall be applied by Lender on the next Monthly Payment Date. The Allocated Loan Amount of an applicable Individual Property shall be reduced by an amount equal to such prepayment of principal upon such application of Net Proceeds pursuant to this Section 2.4.2. Notwithstanding the foregoing and anything else herein to the contrary, if in connection with any Casualty or Condemnation at any Individual Property Lender exercises its right provided for herein not to make the Net Proceeds available to Borrower for a Restoration, then at Borrower’s option, Lender shall release the applicable Individual Property from the lien of the Mortgage and related Loan Documents (or, in lieu of such release, the assignment of the related Mortgage by Lender on substantially the same terms as are provided in Section 2.4.1(c)), provided that (i) Borrower shall pay Lender an amount which, when added to the Exposure amount of any Lender exceeds Net Proceeds received in connection with such Lender’s Revolving Credit Commitment; or
Casualty or Condemnation, equals the Allocated Loan Amount of the Individual Property for which the Net Proceeds were obtained together with interest on such amount calculated for the same periods as Net Proceeds in the first sentence of this Section 2.4.2, (ii) no Event of Default shall have occurred and be continuing (except for any Event of Default which would be cured or eliminated by the Total Exposure exceeds release or assignment of the lesser Individual Property, (iii) Borrower shall provide to Lender a release of (x) Total Revolving Credit Commitments the Mortgage as it relates to such Individual Property and related Loan Documents in a form appropriate for the jurisdiction in which the applicable Individual Property is located and reasonably satisfactory to Lender for execution by Lender and (yiv) simultaneously with the Borrowing Base; the release, Borrower shall repay the Revolving Credit Loans convey fee simple title to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less Release Property to a Person other than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative AgentBorrower.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the Any prepayment of the Loans Loan pursuant to this Section 2.4.2 shall exceed $1,000,000.
be without premium (dincluding Yield Maintenance Premium) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case or penalty of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionkind.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 3 contracts
Samples: Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust), Loan Agreement (Americold Realty Trust)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, date the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in with respect thereof, to an amount equal to 75% of such Net Cash Proceeds (“Allocated Proceeds”; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such date as set forth in Section 2.9(d); provided, that, notwithstanding proceeds are received toward the foregoingprepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall exceed $1,000,000.
in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (d) All such amounts described in Sections 2.9(bi) and (cii) (subject above, to the extent that the terms of the Intercreditor Agreementdocumentation for any First Lien Notes or Pre-Existing Debt that is secured on a pari passu basis with the Obligations under this Agreement require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes or Pre-Existing Debt pursuant to a mandatory offer to purchase such First Lien Notes or Pre-Existing Debt, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall such Allocated Proceeds may be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If 2.9(c) and purchase First Lien Notes and/or Pre-Existing Debt on a pro rata basis based on the precise amount respective amounts of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures Term Loans and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans First Lien Notes and/or Pre-Existing Debt then outstanding.
(fb) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Debt Incurrence Prepayment Event then with respect to an amount equal to 100% of such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The Borrower shall notify the Administrative Agent (and, in the case application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a Swing Line Loan, pro rata basis to each Class of Term Loans then outstanding (except to the Swing Line Lender) by telephone (confirmed by facsimile extent that any Incremental Activation Notice for any Class of Incremental Term Loans or by other electronic transmission) Extended Term Loans provide that such Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any prepayment hereunder (i) in the case of amounts required to be applied to a prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (iiTerm Loans pursuant to Section 2.9(b) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify made, at the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower Borrower’s option (by notice to the Administrative Agent Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or prior (ii) to the specified dateTerm Loans of each Class in direct order of maturity (based on the respective Term Maturity Dates for such Classes) and, if more than one Class of Term Loans has the same Term Maturity Date, on a pro rata basis between such condition is not satisfiedClasses of Term Loans based on the respective principal amount of such Classes of Term Loans then outstanding. Promptly following receipt Amounts required to be applied to the prepayment of Term Loans of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Class shall be in an amount that would be permitted in the case applied first, to ABR Loans of an advance such Class and, second, to Eurodollar Loans of a Borrowing of the same Type as provided in Section 2.1such Class. Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under this Section 2.9 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 3 contracts
Samples: Credit Agreement (Cco Holdings LLC), Credit Agreement (Cco Holdings LLC), Credit Agreement (Charter Communications, Inc. /Mo/)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excessUnless a Reinvestment Notice has been given, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less no later than the amount third Business Day following the date of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred receipt by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Restricted Subsidiaries of any Net Cash Proceeds, an amount equal the Borrower shall prepay, without premium or penalty, the Loans and (to 100% the extent such prepayment has not been deducted pursuant to clause (c) of the definition of Net Cash Proceeds thereof received during Proceeds) any Cash Dominion Period shall be applied then outstanding loans under any Ratio Debt Loan Agreement or Term Loan Refinancing Indebtedness, in each case, that is secured pursuant to Section 7.02(s) on the date of receipt a pro rata basis with 75% of such Net Cash Proceeds as set forth in Section 2.9(dexcess of $50,000,000; provided that, upon receipt of Investment Grade Ratings (and for all periods thereafter), providedthe Borrower shall only be required to prepay, howeverwithout premium or penalty, that the foregoing requirements of this paragraph Loans and (b) shall to the extent such prepayment has not apply been deducted pursuant to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
clause (c) If on any date SuperHoldings, Holdings, of the Borrower or any definition of their respective Subsidiaries shall receive Net Cash Proceeds from Proceeds) any Asset Sale then outstanding loans under any Ratio Debt Loan Agreement or Recovery Event (orTerm Loan Refinancing Indebtedness, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided furthercase, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject is secured pursuant to Section 7.02(s) on a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount pro rata basis with 50% of such Net Cash Proceeds received by SuperHoldings, Holdingsin excess of $50,000,000. On the 1st Business Day after the expiration of any Reinvestment Period, the Borrower shall prepay, without premium or penalty, the Loans and their respective Subsidiaries and (to the extent such prepayment has not previously applied toward been deducted pursuant to clause (c) of the definition of Net Cash Proceeds) any then outstanding loans under any Ratio Debt Loan Agreement or Term Loan Refinancing Indebtedness, in each case, that is secured pursuant to Section 7.02(s) on a pro rata basis with any portion of such percentage of such Net Cash Proceeds in excess of $50,000,000 which have not been reinvested in accordance with the preceding sentence. Concurrently with any prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject pursuant to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with this Section 2.15(f2.05(b). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify deliver to the Administrative Agent (and, in the case of prepayment i) a certificate of a Swing Line LoanResponsible Officer demonstrating the calculation of the amount of the applicable Net Cash Proceeds, the Swing Line Lenderand (ii) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, at least three Business Days before the date prior written notice of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and of prepayment shall specify the prepayment date date, the Type of each Loan being prepaid and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, in the case prepaid. All prepayments of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified dateBorrowings under this Section 2.05(b) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would subject to Section 3.05, but shall otherwise be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment. In the event that the Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, the Borrower shall promptly make an additional prepayment of the Loans in an amount equal to such excess, and the Borrower shall concurrently therewith deliver to the extent required by Section 2.18Administrative Agent a certificate of a Responsible Officer demonstrating the derivation of such excess amount.
Appears in 3 contracts
Samples: Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.), Senior Secured Term Loan Agreement, Senior Secured Term Loan Agreement (Energy Transfer Equity, L.P.)
Mandatory Prepayments. (a) In No later than the event and on third (3rd) Business Day following the date of receipt by Holdings or any of its Subsidiaries of any Net Cash Proceeds of any sale or disposition by Holdings or any of its Subsidiaries of any assets in an aggregate amount exceeding $250,000, the Borrower shall prepay the Obligations in an amount equal to the Net Cash Proceeds of such occasion that:
sale or disposition; provided, that (i) the Exposure Borrower shall not be required to prepay the Obligations with respect to proceeds from the sales or dispositions of any Lender exceeds such Lender’s Revolving Credit Commitment; or
assets in the ordinary course of business (including obsolete or worn-out equipment no longer useful in its business), and (ii) so long as no Default or Event of Default shall have occurred and be continuing at the Total Exposure exceeds time of the lesser receipt of proceeds pursuant to this subsection (a) or at the proposed time of the reinvestment of such proceeds, the Borrower shall have the option, upon written notice to the Administrative Agent, directly or (x) Total Revolving Credit Commitments and 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 Borrowing Base; 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 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 (a) shall repay the Revolving Credit Loans 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 excess, provided that if Insurance Subsidiary’s assets (or the aggregate principal amount assets of Revolving Credit Loans then outstanding is less than a Subsidiary thereof) and (B) the amount dividend of such excess Net Cash Proceeds by such Insurance Subsidiary (because L/C Obligations constitute a portion 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, shall cause such Insurance Subsidiary (or Subsidiary thereof) to immediately make a dividend of the Net Cash Proceeds to the extent Borrower which the Borrower shall use to prepay the Obligations in accordance with this subsection (a). Any such prepayment shall be applied in accordance with subsection (f) of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agentthis Section.
(b) If No later than the third (3rd) Business Day following the date of receipt by Holdings or any Indebtedness 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 Obligations in an amount equal to all such Net Cash Proceeds; provided, that so long as no Default or Event of Default shall have occurred and be continuing at the time of the receipt of proceeds pursuant to this subsection (b) or at the proposed time of the reinvestment of such proceeds, the Borrower shall have 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 one hundred eighty (180) days of receipt thereof in assets of the 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 (b) shall also not apply solely to the extent that (A) the Net Cash Proceeds of 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 in accordance with this subsection (b). Any such 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 7.1; 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 SuperHoldingsany 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, Holdingswithout 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 their respective Subsidiariesits Subsidiaries of any proceeds from key man life insurance policies, the Borrower shall prepay the Obligations in an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period all such proceeds. Any such prepayment shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date subsection (f) of this AgreementSection.
(ce) If on any date SuperHoldings, HoldingsNo later than the first (1st) Business Day following the occurrence of an Equity Monetization Event, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, prepay the Obligations in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, full. Any such Net Cash Proceeds 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 such date as set forth in Section 2.9(dtheir 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, notwithstanding the foregoingafter all regularly scheduled amortization payments have been made in full in accordance with Section 2.4, on each Reinvestment Prepayment Date, an amount equal any remaining amounts required to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event be prepaid under this Section 2.7 shall be applied as set forth a prepayment to the final payment that would otherwise be due on the Maturity Date until paid in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000full.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(fg) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) written notice of any prepayment hereunder pursuant to clauses (ia), (b), (c), (d) in the case or (e) of prepayment of a Eurocurrency Loan, this Section 2.7 not later than 10:00 A.M., 11:00 a.m. (New York City time, three Business Days before the date of prepayment, ) one (ii1) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and (which shall be a Business Day), the principal amount of each Borrowing or portion thereof the Loans to be prepaid and, in the case of a mandatory prepayment, set forth and a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing All prepayments of the same Type as provided in Loans pursuant to clauses (a), (b), (c), (d) or (e) of this Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments 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 required by 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 2.182.7, 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) In The Borrowers shall prepay the event and on such occasion thatLoans in accordance with the following:
(i) Substantially concurrently with the Exposure incurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Indebtedness by any Loan Party or any of its Subsidiaries (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less other than the amount of such excess (because L/C Obligations constitute a portion thereofIndebtedness permitted under Section 9.01), the Borrower shall, to Borrowers shall prepay the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established Term Loans together with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, applicable Prepayment Premium in an amount equal to one hundred percent (100% %) of the applicable Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d)Debt Proceeds, provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d4.02(b). Nothing in this Section 4.02(a)(i) until shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the date upon which the aggregate amount terms of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000this Loan Agreement.
(dii) All such amounts described in Sections 2.9(bWithin five (5) and (c) (subject to the terms Business Days of the Intercreditor Agreementreceipt 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 from such Dispositions that, in the case of any insurance or condemnation proceedsaggregate, exceed $500,000 per fiscal year, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of in Section 4.02(b); provided, however, that the amount of such prepaymentBorrowers may, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked at Administrative Borrower’s option by the Borrower (by written notice to the Administrative Agent on or prior to the specified datedate that is five (5) if Business Days after receipt of such condition Net Disposition Proceeds, within twelve (12) months after such event, reinvest or commit to reinvest such Net Disposition Proceeds in assets to be used in the business of 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 exceed $2,500,000 during any fiscal year, (B) no Default or Event of Default has occurred and is continuing, and the Administrative Borrower certifies in writing to the Administrative Agent that no Default or Event of Default has occurred and is continuing and (C) such Net Disposition Proceeds are held in an account subject to an Account Control Agreement while awaiting reinvestment. Nothing in this Section 4.02(a)(ii) shall be construed to permit or waive any Default or Event of Default arising from any Disposition not permitted under the terms of this Loan Agreement.
(iii) Within five (5) Business Days of the receipt by any Loan Party or any of its Subsidiaries of any proceeds from Casualty Events that, in the aggregate, exceed $500,000 per fiscal year, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of such 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 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 Net Casualty Proceeds, with the amount of Net Casualty Proceeds not so used after such period to be applied as set forth in Section 4.02(b); so long as (A) the 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, (B) no Default or Event of Default has occurred and is continuing, and the Administrative Borrower certifies in writing to the Administrative Agent that no Default or Event of Default has occurred and is continuing and (C) such 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 construed to permit or waive any Default or Event of Default arising, directly or indirectly, from any Casualty Event.
(iv) 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 satisfied. Promptly following 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 of any tax refunds, the Borrowers shall prepay the Term Loans in an amount equal to one hundred percent (100%) of all such notice net cash proceeds of tax refunds, to be applied as set forth in Section 4.02(b).
(other than a notice relating solely vi) For each fiscal year of Spark, commencing with the fiscal year ending December 31, 2019 (limited to Swing Line Loansthe 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 shall advise a written calculation of Consolidated Excess Cash Flow for the Lenders applicable fiscal year, certified by an Authorized Officer of the contents thereof. Each partial 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 prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing prepayments of the same Type as provided Term Loans paid in Section 2.1. Each prepayment cash during the applicable fiscal year and (y) voluntary prepayments of a Borrowing shall be applied ratably to Revolving Loans paid in cash during the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest applicable fiscal year to the extent accompanied by a permanent reduction of the Revolving Loan Commitment, will reduce the amount of prepayments required by to be made pursuant to this Section 2.184.02(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 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) is additional consideration for providing the Loans, (ii) constitutes reasonable liquidated damages to compensate the Lenders for (and is a 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 Event of Default.
(viii) Concurrently with any Change of Control, the Borrowers shall repay all of the Loans together with the 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) In the event and on such occasion that:
(i) If the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding the Notes is less than accelerated (including, but not limited to, upon the amount occurrence of such excess a bankruptcy or insolvency event (because L/C Obligations constitute a portion thereofincluding the acceleration of claims by operation of law)), the Borrower shallIssuer shall immediately pay to Purchasers, payable to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount each Purchaser in cash in a cash collateral account established accordance with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their its respective SubsidiariesPro Rata Share, an amount equal to 100% the sum of: (i) the outstanding principal amount of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on Notes, plus (ii) accrued and unpaid interest thereon through the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d)prepayment date, providedplus (iii) all other Obligations that are due and payable, howeverincluding Purchasers’ Expenses and interest at the Default Rate, that the foregoing requirements of this paragraph (b) shall not apply if applicable, with respect to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementpast due amounts.
(cii) If on any date SuperHoldings, Holdings, the Borrower Issuer or any of their respective Subsidiaries Subsidiary shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Sale, Issuer shall apply an amount equal to one hundred percent (or100%) of such Net Proceeds, in to prepay the event of damage by casualty, the date the repair or restoration of the relevant Property is completedNotes; provided that,
(1) and a Cash Dominion Period then exists, then, unless Issuer may deliver a Reinvestment Notice shall be delivered in with respect thereof, to the percentage of such Net Cash Proceeds in the Issuer Retention column below, and shall be applied on apply an amount equal to the percentage of such date as set forth Net Proceeds in Section 2.9(d); providedthe Note Repayment column below, that, to prepay the Notes: and
(2) notwithstanding the foregoing, on each Reinvestment Prepayment Date, Issuer shall apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to prepay the Notes (together with any applicable premium). All Net Proceeds from Asset Sales shall be applied as set forth deposited in a Collateral Account pending repayment or reinvestment in accordance with the terms of this Section 2.9(d2.2(c); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required . Amounts to be applied as set forth in connection with prepayments made pursuant to this Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property2.2(c)(ii) shall be applied, first payable to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction each Purchaser in the Total Revolving Credit Commitmentsaccordance with its respective Pro Rata Share; provided that during an Event of Default, all any Purchaser may decline any such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determinedprepayment (collectively, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event“Declined Amount”), in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Declined Amount shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1retained by Issuer. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments Notes under this Section 2.2(c)(ii) shall be accompanied by accrued interest to the extent required by date of such prepayment on the amount prepaid. Issuer shall deliver to each Purchaser notice of each prepayment of Notes in whole or in part pursuant to this Section 2.182.2(c)(ii) not less than five (5) Business Days 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 prepayment, and (iii) the option of each Purchaser to (x) decline its share of such prepayment or (y) accept Declined Amounts. Any Purchaser that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify Issuer not later than three (3) Business Days prior to the Mandatory Prepayment Date. Issuer shall not, and shall not permit any of the Subsidiaries to, use any Net Proceeds received from any Asset Sale to repay any Junior Indebtedness.
Appears in 3 contracts
Samples: Note Purchase Agreement (5E Advanced Materials, Inc.), Note Purchase Agreement (5E Advanced Materials, Inc.), Note Purchase Agreement (5E Advanced Materials, Inc.)
Mandatory Prepayments. (a) In If Lender is not obligated to make Net Proceeds available to any Borrower for Restoration, on the event and next occurring Monthly Payment Date following the date on such occasion that:
which (i) the Exposure of Lender actually receives any Lender exceeds such Lender’s Revolving Credit Commitment; or
Net Proceeds, and (ii) Lender has determined that such Net Proceeds shall be applied against the Total Exposure exceeds Outstanding Principal Balance, Borrowers shall prepay, or authorize Lender to apply Net Proceeds as a prepayment of, the lesser Outstanding Principal Balance in an amount equal to one hundred percent (100%) of (x) Total Revolving Credit Commitments such Net Proceeds. So long as no Event of Default has occurred and (y) the Borrowing Base; the Borrower is continuing, no Yield Maintenance Premium shall repay the Revolving Credit Loans be due in connection with any prepayment made pursuant to this Section 2.4.2. Any partial prepayment under this Section 2.4.2 shall be applied to the extent last payments of such excess, provided that if principal due under the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative AgentLoan.
(b) If any Indebtedness shall be incurred by SuperHoldingsprepayment under this Section 2.4.2 results in the payment in full of all principal and interest due on the Loan and all other amounts due under the Loan Documents, HoldingsLender shall, upon the Borrower or any written request and at the expense of their respective SubsidiariesBorrowers, an amount equal to 100% release the Liens of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on Mortgages and the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementother Loan Documents.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in In the event that following the occurrence of damage by casualtya Casualty or a Condemnation with respect to any Property, Lender is not obligated to make the date Net Proceeds available to the repair or restoration of the relevant Property is completed) applicable Borrower for Restoration and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, has determined that such Net Cash Proceeds shall be applied on against the Outstanding Principal Balance pursuant to Section 2.4.2(a), then, provided that no Event of Default shall have occurred and be continuing, the Borrower that owns such date as set forth Property shall have the right, at its sole cost and expense, to obtain a release of the Liens of the Mortgage encumbering such Property and the other related Loan Documents by: (i) delivering written notice to Lender of its election to obtain a release of such Property within ten (10) days after receiving notice from Lender that Lender intends to apply such Net Proceeds to the Outstanding Principal Balance, and (ii) paying to Lender within sixty (60) days after receiving notice from Lender that Lender intends to apply such Net Proceeds to the Outstanding Principal Balance, in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Dateaddition to such Net Proceeds, an amount equal to the Reinvestment Prepayment sum of (A) the Release Amount with respect to for such Property minus the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldingsapplied to the Outstanding Principal Balance, Holdingsplus (B) if such prepayment occurs on a day other than a Monthly Payment Date, interest at the Interest Rate on the amount so prepaid through, but not including, the next succeeding Monthly Payment Date. Such Borrower shall prepare and their respective Subsidiaries submit to Lender the release of Mortgage (and not previously applied toward related Loan Documents) for the prepayment Property to be released for execution by Lender, which documents shall be in a form appropriate for the jurisdiction in which such Property is located; provided that such Borrower’s obligation to indemnify and hold harmless Lender pursuant to the provisions of the Loans Loan Documents shall exceed $1,000,000.
(d) All survive any such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, release to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionexpressly stated therein.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 3 contracts
Samples: Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc), Loan Agreement (Ashford Hospitality Trust Inc)
Mandatory Prepayments. (a) In Unless the event and Required Prepayment Lenders shall otherwise agree, if on such occasion that:
(i) any date the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, HoldingsParent, the Borrower or any of their respective Subsidiariesits Class I Restricted Subsidiaries shall incur any Indebtedness (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such issuance or incurrence toward the prepayment of such Net Cash Proceeds the Loans as set forth in Section 2.9(d2.10(c), provided, however, that the foregoing requirements . The provisions of this paragraph (b) shall Section do not apply constitute a consent to the incurrence of any Indebtedness incurred in accordance with Section 7.2 as in effect on by the date of this Agreement.
(c) If on any date SuperHoldings, HoldingsParent, the Borrower or any of their respective its Subsidiaries not permitted by Section 7.2.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if the Borrower or any of its Class I Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or any Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof not later than 45 days after the end of the fiscal quarter during which the Borrower or any of its Class I Restricted Subsidiaries received such Net Cash Proceeds, the Loans shall be prepaid by an amount equal to the amount of such Net Cash Proceeds shall be applied on (excluding any amounts subject to any such date Reinvestment Notice), as set forth in Section 2.9(d2.10(c); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, Date the Loans shall be prepaid by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied Event, as set forth in Section 2.9(d2.10(c); and provided further, that notwithstanding . The provisions of this Section do not constitute a consent to the foregoing, such Net Cash Proceeds which are consummation of any Disposition not subject to a Reinvestment Notice shall not be required permitted by Section 7.5.
(c) Amounts to be applied as set forth in prepayments pursuant to this Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldingsshall be applied, Holdingsfirst, the Borrower and their respective Subsidiaries and not previously applied toward to the prepayment of the Term Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceedssecond, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay prepayment of the Revolving Credit Loans without and as specified in Section 2.16. Any such mandatory prepayment of the Revolving Credit Loans pursuant to this Section 2.10 shall not result in a corresponding mandatory reduction in of the Total Revolving Credit Commitments; provided that during an Event . Amounts prepaid in respect of Default, all such amounts shall Term Loans pursuant to this Section 2.10 may not be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionreborrowed.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 3 contracts
Samples: Credit Agreement (Cinemark Usa Inc /Tx), Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be issued or incurred by SuperHoldings, Holdings, the Borrower any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2 (other than any Credit Agreement Refinancing Facilities or any of their respective SubsidiariesPermitted External Refinancing Debt)), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such issuance or incurrence toward the prepayment of such Net Cash Proceeds the Term Loans as set forth in Section 2.9(d2.12(d), provided, however, that the foregoing requirements of this paragraph .
(b) shall not apply Subject to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If 2.12(e), if on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (orthat does not constitute a Reinvestment Event or an MF Required Disposition, which, together with the Net Cash Proceeds received from all other Asset Sales or Recovery Events in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then existssuch fiscal year exceed $40,000,000, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to such Net Cash Proceeds in excess of $40,000,000, and an amount equal to all Net Cash Proceeds received thereafter in such fiscal year, shall be applied on such date the fifth Business Day after receipt toward the prepayment of the Term Loans as set forth in Section 2.9(d2.12(d); 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 Term Loans as set forth in Section 2.9(d2.12(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d.
(c) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000[Reserved].
(d) All such amounts described Amounts to be applied in Sections 2.9(b) and (c) (subject connection with prepayments made pursuant to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts Section 2.12 shall be applied to the prepayment of the Term Loans in accordance with Section 2.15(f2.18(b). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under Section 2.12 shall be accompanied by accrued interest to the extent date of such prepayment on the amount prepaid.
(e) Notwithstanding any provision to the contrary in this Agreement, the following amounts shall be excluded from the calculation of the amount of Net Cash Proceeds from any Asset Sale or Recovery Event, as applicable:
(i) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, as applicable, the distribution of which by a Foreign Subsidiary to the Parent Borrower or a Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary is prohibited or delayed by applicable local law. Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this Section 2.12(e)(i) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b), so long, but only so long, as the applicable local law will not permit a distribution of those funds by the Foreign Subsidiary (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable law to eliminate such limitations). Once the distribution of any of such affected Net Cash Proceeds is permitted under the applicable local law, the Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such distribution is permitted) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Event has occurred in respect of such Net Cash Proceeds or to the extent Section 2.182.12(e)(ii) precludes such prepayment; and
(ii) any Net Cash Proceeds from any Asset Sale by a Foreign Subsidiary or Net Cash Proceeds from any Recovery Event with respect to a Foreign Subsidiary, in each case, to the extent that the Parent Borrower has determined in its reasonable judgment that the distribution of any of or all such items to the Parent Borrower or any Domestic Subsidiary or any holder of Capital Stock of such Foreign Subsidiary would have any adverse tax consequence (the Parent Borrower hereby agreeing to use commercially reasonable efforts to take and to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to take all commercially reasonable actions required by the applicable law to avoid any such adverse tax consequence). Any amount that is excluded from the calculation of Net Cash Proceeds in accordance with this paragraph 2.12(e)(ii) will not be required to be applied to repay Loans at the times provided in Section 2.12(b) and may be deducted from any amounts otherwise due under Section 2.12(b). Once the Parent Borrower determines in its reasonable judgment that a distribution of any of such affected Net Cash Proceeds would cease to result in adverse tax consequences, the Parent Borrower shall prepay the Term Loans (not later than five (5) Business Days after such determination) by an amount equal to such portion of such affected amount, except, for the avoidance of doubt, to the extent that a Reinvestment Event has occurred in respect of such Net Cash Proceeds or to the extent Section 2.12(e)(i) precludes such prepayment. Notwithstanding anything to the contrary in this Section 2.12, in no event shall any Group Member be required to repatriate cash of Non-Domestic Subsidiaries to the United States.
(f) If, on any date, (i) the aggregate Dollar Equivalents of the sum of the aggregate outstanding principal amounts of Foreign Currency Loans and any outstanding L/C Obligations denominated in any L/C Foreign Currency exceeds an amount equal to 105% of the Foreign Currency Sublimit, the Borrowers shall, without notice or demand, immediately repay such of the outstanding Foreign Currency Loans and cash collateralize any outstanding Letters of Credit denominated in any L/C Foreign Currency in an aggregate principal amount such that, after giving effect thereto, the aggregate Dollar Equivalents of the outstanding principal amounts of Foreign Currency Loans does not exceed the Foreign Currency Sublimit or (ii) the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments, and the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) exceed the Total Revolving Commitments for two consecutive Business Days thereafter, then on such second Business Day thereafter, the Borrowers shall, without notice or demand, immediately repay such of the outstanding Revolving Extensions of Credit and cash collateralize any outstanding Letters of Credit in an aggregate principal amount such that, after giving effect thereto, the Total Revolving Extensions of Credit (including the Dollar Equivalents of any Revolving Extensions of Credit outstanding in a currency other than Dollars) do not exceed the Total Revolving Commitments.
Appears in 3 contracts
Samples: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Aggregate Revolving Credit Commitment; or
(ii) the Total Exposure Extensions of Credit exceeds the lesser of Line Cap (x) Total including after giving effect to any reductions in the Revolving Credit Commitments and pursuant to Section 5.4(a)), the Company shall within one (y1) Business Day of notice thereof from the Borrowing Base; the Borrower shall repay the Administrative Agent prepay Revolving Credit Loans to (including the extent of such excess, provided that if Swingline Loans) and Cash Collateralize the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, in an aggregate amount equal to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(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 (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 Indebtedness shall be incurred by SuperHoldingsCredit Party receives any Net Proceeds in respect of any Notes Priority Collateral Prepayment Event, Holdingsthen (i) so long as no Cash Dominion Event has occurred or is in effect, the Borrower Company shall, on the next Business Day after the Net 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 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), prepay the Obligations in an aggregate amount equal to the lesser of (A) 100% of such Net Proceeds minus amounts so 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 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 longer continuing and (B) the date that is 365 days thereafter (provided that if the Parent or any of their respective Subsidiariesits 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 of the date of incurrence 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 Cash Proceeds thereof net proceeds received during any Cash Dominion Period shall be applied on the date of receipt of by such Net Cash Proceeds as set forth Person in Section 2.9(d), provided, however, that the foregoing requirements connection with such incurrence. The provisions of this paragraph (bSection 5.6(d) shall not apply be deemed to be implied consent to any Indebtedness incurred in accordance with Section 7.2 as in effect on such incurrence otherwise prohibited by the date terms and conditions of this Agreement.
(ce) If on If, at the end of any date SuperHoldings, HoldingsExcess 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 Borrower or any of their respective Subsidiaries Company shall receive Net prepay Revolving Credit Loans and Cash Proceeds from any Asset Sale or Recovery Event (or, Collateralize the Revolving L/C Obligations in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to the Reinvestment Prepayment Amount with respect to lesser of (i) the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Excess Cash Proceeds received minus $25,000,000 minus the amount of any wires initiated or ACH transfers issued by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, any Credit Party in the case ordinary course of any insurance or condemnation proceeds, business after the end of such Excess Cash Test Date and prior to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M.12:00 P.M., New York City time, on the date of prepayment. Each that such notice shall prepayment is required to be irrevocable made and shall specify (ii) the prepayment date and the aggregate principal amount of each Borrowing or portion thereof to be prepaid andRevolving Credit Loans and Revolving L/C Obligations then outstanding by 12:00 P.M., in New York City time on the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, next Business Day; provided that a notice of optional prepayment may state that such notice is conditioned upon prepayments under this Section 5.6(e) shall not require the receipt of Company to pay any breakage under Section 5.21. All prepayments made under this Section 5.6 shall be made first, to prepay any Protective Advances, second, to prepay the proceeds from Revolving Credit Loans (including the issuance of other Indebtedness or any other eventSwingline Loans), in which case such notice of prepayment may be revoked by the Borrower (by notice third, to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment payment of any Revolving Credit Loan shall be in an amount that would be permitted L/C Obligations then outstanding, and fourth, to Cash Collateralize outstanding Letters of Credit, without a corresponding permanent reduction in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Revolving Credit Commitments.
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. (a) In the event and on such occasion that:
(i) the Exposure of During any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower Dominion Trigger Period, all funds deposited into any Dominion Account shall automatically be dispersed to repay the outstanding Revolving Credit Loans (for the avoidance of doubt, it being understood and agreed that, after such repayment and subject to the extent of such excessAvailability Block and the other terms herein, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount Borrowers may reborrow hereunder in cash in a cash collateral account established accordance with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.herein);
(b) If Concurrently with the receipt by any Indebtedness shall be incurred by SuperHoldingsBorrower of any net cash proceeds from any Asset Disposition of any Collateral (other than with respect to a Permitted Asset Disposition), Holdings, the Borrower or any of their respective Subsidiaries, in an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.Asset Disposition;
(c) If on Concurrently with the receipt of any date SuperHoldingsproceeds of insurance paid in respect of any Collateral, HoldingsBorrowers shall prepay Revolver Loans in an amount equal to such proceeds, subject to Section 8.6.2;
(d) Concurrently with the receipt of any net cash proceeds from the issuance of any Debt of any Borrower (excluding Debt permitted by Section 10.2.1) in an amount equal to 100% of such net cash proceeds to the extent not used for Acquisitions by a Borrower within one hundred eighty (180) days thereafter.
(e) Concurrently with any issuance of Equity Interests by a Borrower (excluding any issuance of Equity Interests (v) in defeasance and satisfaction of the 2009 Convertible Notes; (w) in connection with a Permitted Acquisition; (x) pursuant to any employee or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale director option program, benefit plan or Recovery Event compensation program; (ory) by a Subsidiary to Titan International or another Subsidiary to Titan International or another Subsidiary or (z) if waived by the Required Lenders, in the event connection with a Change of damage by casualtyControl of any Borrower), the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice Borrowers shall be delivered prepay Revolver Loans in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount net proceeds of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
issuance (d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, except to the extent they arise that such proceeds are intended to be, and in fact are, reinvested within 180 days from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event such date of Default, all such amounts shall be applied in accordance with Section 2.15(fissuance). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify Immediately upon the Administrative Agent (and, in the case of prepayment occurrence of a Swing Line LoanNo Draw Period, Borrowers shall prepay in full the Swing Line Lender) by telephone Revolver Loans (confirmed by facsimile or by other electronic transmission) not including any outstanding Letters of any prepayment hereunder (i) Credit so long as Borrowers are in compliance with the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each LC Conditions at such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice time (other than a notice relating solely with respect to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in compliance with Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.186.2(a))).
Appears in 2 contracts
Samples: Credit and Security Agreement (Titan International Inc), Credit and Security Agreement (Titan International Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[reserved].
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e). Contemporaneously with the prepayment of the Term Loans pursuant to this Section 2.12(b) prior to the first anniversary of the Closing Date, the Borrower shall pay to the Administrative Agent (for the ratable benefit of the Lenders), provided, however, that a prepayment fee equal to 1.00% of the foregoing requirements aggregate amount of this paragraph (b) the Term Loans so prepaid. Any such Term Loan prepayment fee shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect be fully earned on the date paid and shall not be refundable for any reason; provided that in the event that (i) such prepayment occurs as a result of this Agreementa Refinancing and (ii) SVB acts as the sole and exclusive administrative agent and collateral agent for such Refinancing, then any Lender participating in such Refinancing shall not be entitled to any portion of the prepayment premium, and the amount of the total prepayment premium shall be reduced accordingly.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e); provided, that, notwithstanding the foregoing, provided that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion[reserved].
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied first to the prepayment of installments due in respect of the Term Loans on a pro rata basis and in accordance with Sections 2.3 and 2.18(b) and second to repay outstanding Revolving Loans and Swingline Loans in accordance with Section 2.18(c) (with no corresponding permanent reduction in the Revolving Commitments) (provided that any Term Lender may decline any such prepayment (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; and second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans and Swingline Loans in accordance with Section 2.18(c) (with no corresponding permanent reduction in the Revolving Commitments). 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 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 agrees that during shall deliver to the period from September 1 through December 31 Administrative Agent and each Term Lender notice of each calendar year there prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a period “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of at least 30 consecutive days during which there are no Loans outstandingsuch prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to 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 three (3) Business Days prior to the Mandatory Prepayment Date.
(f) The Borrower shall notify deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least ten (10) days’ prior written notice of such prepayment (and the Administrative Agent (and, in shall promptly provide the case same to each Lender). Each notice of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, prepaid.
(g) No prepayment fee shall be payable in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt respect of any such notice (mandatory prepayments made pursuant to this Section 2.12, other than a notice relating solely pursuant to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.12(b).
Appears in 2 contracts
Samples: Credit Agreement (Accuray Inc), Credit Agreement (Accuray Inc)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, date the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in with respect thereof, to an amount equal to 75% of such Net Cash Proceeds (“Allocated Proceeds”; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such date as set forth in Section 2.9(d); provided, that, notwithstanding proceeds are received toward the foregoingprepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall exceed $1,000,000.
in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (d) All such amounts described in Sections 2.9(bi) and (cii) (subject above, to the extent that the terms of the Intercreditor Agreementdocumentation for any First Lien Notes or Pre-Existing Debt that is secured on a pari passu basis with the Obligations under this Agreement require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes or Pre-Existing Debt pursuant to a mandatory offer to purchase such First Lien Notes or Pre-Existing Debt, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall such Allocated Proceeds may be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If 2.9(c) and purchase First Lien Notes and/or Pre-Existing Debt on a pro rata basis based on the precise amount respective amounts of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures Term Loans and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans First Lien Notes and/or Pre-Existing Debt then outstanding.
(fb) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Debt Incurrence Prepayment Event then an amount equal to 100% of such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The Borrower shall notify the Administrative Agent (and, in the case application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a Swing Line Loan, pro rata basis to each Class of Term Loans then outstanding (except to the Swing Line Lender) by telephone (confirmed by facsimile extent that any Incremental Activation Notice for any Class of Incremental Term Loans or by other electronic transmission) Extended Term Loans provide that such Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any prepayment hereunder (i) in the case of amounts required to be applied to a prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (iiTerm Loans pursuant to Section 2.9(b) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify made, at the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower Borrower’s option (by notice to the Administrative Agent Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or prior (ii) to the specified date) if such condition is not satisfiedTerm Loans of each Class selected by the Borrower. Promptly following receipt Amounts required to be applied to the prepayment of Term Loans of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Class shall be in an amount that would be permitted in the case applied first, to ABR Loans of an advance such Class and, second, to Eurodollar Loans of a Borrowing of the same Type as provided in Section 2.1such Class. Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under this Section 2.9 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 2 contracts
Samples: Credit Agreement (Cco Holdings Capital Corp), Restatement Agreement (Charter Communications, Inc. /Mo/)
Mandatory Prepayments. (a) In Within 10 Business Days after the event and on such occasion that:
(i) the Exposure consummation of any Lender exceeds such Lender’s Revolving Credit Commitment; or
sale or other disposition of Property (iiincluding the sale or other disposition of Receivables) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any Restricted Subsidiary if the aggregate fair market value of their respective Subsidiariesthe 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 such sales or other dispositions consummated during the 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 Days after receipt of such Officer’s Certificate the Administrative Agent, on behalf of the Required Lenders, shall have notified the 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 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 thereof received during of such sales or other dispositions with respect to which the Borrower shall have given the Administrative Agent written notice (set forth in the applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (a)) of its intention to repair or replace the Property subject to any Cash Dominion Period shall be applied on the date of receipt of such sale 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 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 Section 2.9(dthe 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)), providedsecond, however, that the foregoing requirements to repay outstanding Swingline Loans and third to repay outstanding Revolving Loans. All prepayments in respect of this paragraph Revolving Loans required under clause (b) shall not apply be accompanied by a concurrent, automatic, irrevocable reduction and partial termination of the Revolving Commitments in an amount equal to any Indebtedness incurred such required prepayment, with such reduction and partial termination allocated ratably among the Lenders in accordance with Section 7.2 as in effect on the date of this Agreementproportion to their respective Pro Rata Share.
(c) If on at any date SuperHoldingstime the Revolving Credit Exposure of all Lenders exceeds the lesser of (i) the Aggregate Revolving Commitment and (ii) the Borrowing Base, Holdingsin each case, then in effect, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event immediately repay Revolving Loans in an amount equal to such excess (or, in the event of damage by casualtyif such excess exceeds $10,000,000, the date the repair or restoration Ratable Share of the relevant Property is completed) such excess), together with all accrued and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, unpaid interest on such Net Cash Proceeds excess amount and any amounts due under Section 2.20. Each prepayment shall be applied on first to the Base Rate Loans to the full extent thereof, and next to Eurodollar Loans to the full extent thereof. If such date 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 2.9(d); provided8.2. The Borrower hereby pledges, that, notwithstanding assigns and grants to the foregoingAdministrative Agent, on each Reinvestment Prepayment Datebehalf of and for the ratable benefit of the Lenders and the Issuing Bank, an amount equal 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 Reinvestment Prepayment Amount with respect LC Collateral Account to secure the relevant Reinvestment Event 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 applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied administered in accordance with Section 2.15(f)2.22(g) hereof. If If, after the precise amount date that the Borrower Cash Collateralizes its reimbursement obligations pursuant to this Section, (x) the Revolving Credit Exposure of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures all Lenders is less than the lesser of the (i) Aggregate Revolving Commitment and real property is not otherwise determined, (ii) the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative AgentBorrowing Base, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be case, then in effect, for a period of at least 30 ten (10) consecutive days during which there are Business Days, and (y) no Loans outstanding.
(f) The Borrower Default or Event of Default then exists, the funds in the LC Collateral Account shall notify be released by the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Encore Capital Group Inc), Amended and Restated Credit Agreement (Encore Capital Group Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans Subject to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
clauses (b) If and (c) below, on each occasion that the Company or any Indebtedness shall be incurred by SuperHoldings, HoldingsSubsidiary receives any Net Cash Proceeds in respect of any Prepayment Event, the Borrower or Company shall promptly (and in any of their respective Subsidiaries, an amount equal to event within five Business Days) apply 100% of the Net Cash Proceeds thereof received during with respect thereto to prepay outstanding Term Loans, it being agreed that to the extent no Term Loans are then outstanding at such time, to the extent any Revolving Loans are outstanding on such date, the Borrowers shall prepay Revolving Loans with such Net Cash Dominion Period Proceeds on such date). Each prepayment of outstanding Loans required to be made pursuant to this paragraph shall be allocated pro rata between the Term Loans (including the Other Term Loans (if any)) or if applicable, Revolving Loans and, in the case of Term Loans, applied on against the date remaining scheduled installments of principal due in respect of the Term Loans, including (unless otherwise specified in the applicable Incremental Assumption Agreement) the Other Term Loans (if any) as directed by the Company.
(b) Notwithstanding clause (a) above, if (x) the Company shall deliver a certificate of an Executive Officer to the Administrative Agent at or promptly following the time of receipt of any amount that would otherwise constitute Net Cash Proceeds of an Asset Sale setting forth the Company’s intent to reinvest such proceeds in productive assets or businesses within 365 days of receipt of such proceeds (the “Investment Period”) and (y) no Event of Default shall have occurred and shall be continuing at the time of the delivery of such certificate, such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such Investment Period (or, if the Company commits to reinvest such proceeds within such Investment Period, within 180 days of the end of such Investment Period), at which time such proceeds shall be deemed to be Net Cash Proceeds.
(c) The Company shall not be required to prepay by any amount that would otherwise be required pursuant to clause (a) above to the extent (i) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation to the Company of any such Net Cash Proceeds would be prohibited, restricted or delayed under any applicable law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors or officers or (ii) the relevant Net Cash Proceeds are generated by any Foreign Subsidiary and the repatriation of such Net Cash Proceeds to the Company would result in adverse tax consequences as set forth reasonably determined by the Company; provided that upon the Company obtaining knowledge that such circumstance in Section 2.9(dclause (i) and/or clause (ii), providedas applicable, however, that the foregoing requirements of this paragraph (b) shall not apply ceases to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofapply, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); deemed received for purposes of clause (a) above and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18reduction requirements applicable thereto.
Appears in 2 contracts
Samples: Credit Agreement (Regal Beloit Corp), Credit Agreement (Regal Beloit Corp)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) Subject to the Exposure proviso below, and except to the extent such Net Cash Proceeds have been used to prepay the obligations under the Parent Credit Agreement, upon the occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) Casualty Event, the Total Exposure exceeds Borrower shall make a mandatory prepayment of the lesser Term Loan in an aggregate amount equal to the sum of (x) Total Revolving Credit Commitments and one hundred percent (y100%) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (y) any accrued but unpaid interest on such principal amount of the Term Loan being prepaid; provided that so long as no Default or Event of Default has occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Dominion Period shall be applied on Proceeds, if, within five (5) Business Days following the date occurrence of receipt any such Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of purchase or construction of other assets useful in the business of Parent or its Subsidiaries, then such Net Cash Proceeds as set forth of such Casualty Event may be applied for such purpose in Section 2.9(d)lieu of such mandatory prepayment, provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (orprovided further that, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such that Net Cash Proceeds have not been so applied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall be applied on such date as set forth make a mandatory prepayment of the Term Loan in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to the Reinvestment Prepayment Amount with respect to sum of (A) one hundred percent (100%) of the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount unused balance of such Net Cash Proceeds received by SuperHoldingsthe Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, Holdingsand (B) any accrued but unpaid interest (including, but not limited to, any accrued but uncapitalized PIK Interest on the First Amendment Term Loan and the Second Amendment Term Loan) on such principal amount of the Term Loan being prepaid, provided, further, that to the extent that the property subject to the Casualty Event is Collateral, then any such acquired, replaced, repaired, purchased or constructed property shall be Collateral in which the Administrative Agent, for the benefit of the Lenders, has been granted a security interest under the Security Documents.
(ii) Upon the disposition and sale of the Tucson Real Estate in accordance with Section 8.23, the Borrower and their respective Subsidiaries and not previously applied toward the shall make a mandatory prepayment of the Loans shall exceed $1,000,000Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the Net Cash Proceeds received by the Borrower in connection with such sale, to be applied pursuant to Section 3.03(d) below.
(diii) All Upon the receipt of upfront proceeds pursuant to Section 8.18(b), Parent shall make a mandatory prepayment of the Term Loan in an aggregate amount not to exceed the lesser of (i) the entire outstanding Obligations as of such amounts described date and (ii) $2,000,000, to be applied pursuant to Section 3.03(d) below; provided that if a sale of the North Carolina Business occurs, then no mandatory prepayment shall be required pursuant to this clause (b)(iii).
(iv) Upon the sale of the North Carolina Business in Sections 2.9(baccordance with Section 8.27, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the Net Cash Proceeds received by any Obligor in connection with such sale, to be applied first, to payment of the “Obligations” (as defined in the Parent Credit Agreement) and (csecond, pursuant to Section 3.03(d) (subject to below. Notwithstanding the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceedsforgoing, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction “Obligations” (as defined in the Total Revolving Parent Credit Commitments; Agreement) have been satisfied in full, the Obligors may retain up to $5,450,000 of Net Cash Proceeds received on the closing date of the sale of the North Carolina Business, provided that during such funds are (A) held in a Controlled Account, (B) used to pay employee retention bonuses in an Event of Defaultamount not to exceed $450,000, all such amounts shall be applied and (C) except as set forth in accordance with Section 2.15(fclause (B). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionused solely for working capital purposes.
(ev) The Borrower agrees that during Upon the period from September 1 through December 31 receipt by any Obligor of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The any NC Earnout or any NC Escrow Release, the Borrower shall notify the Administrative Agent (and, in the case of make a mandatory prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) Term Loan in an aggregate amount equal to the lesser of any prepayment hereunder (i) in the case entire outstanding Obligations as of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the such date of prepayment, and (ii) in one hundred percent (100%) of the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each Net Cash Proceeds received by such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof Obligor to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice applied pursuant to the Administrative Agent on or prior to the specified dateSection 3.03(d) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18below.
Appears in 2 contracts
Samples: Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.), Forbearance Agreement and Third Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[Reserved].
(b) If Subject to paragraph (f) below, following the consummation of any Indebtedness shall be incurred Asset Sale by SuperHoldings, Holdings, the Borrower Company or any of their respective its Subsidiaries, in 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, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period of such Asset Sale shall be applied by the Company on the date of receipt thereof to the prepayment of the Loans. Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and shall be continuing at the time of such Asset Sale or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Proceeds except to the extent that within 360 days of receipt of such proceeds, they have neither been reinvested in productive assets of a kind then used or usable in the business of the Company and its Subsidiaries nor contractually committed (and any such proceeds not applied to such contractual commitments at the time required shall be deemed to be Net Proceeds to be applied as set forth in this Section) to be used for such purposes, at which time all such proceeds shall be deemed to be Net Proceeds; provided, that proceeds received from Asset Sales of any Qualified Domestic Assets shall be deemed to have been “reinvested” for purposes of this Section 5.6(b) only to the extent that such proceeds are reinvested (i) pursuant to, and subject to the limitations set forth in, Section 9.7(b)(ii) hereof, or (ii) in assets which will constitute Qualified Domestic Assets, subject only to the perfection of the Liens of the Collateral Agent as required in clause (ii) of the definition thereof.
(c) Each prepayment of Loans pursuant to clause (b) above shall be applied: first, to the next four quarterly principal repayment installments and then to the remaining principal repayment installments, in each case ratably to each Incremental Term Loan Tranche (if any) and to the principal repayment installments thereof, and second, to the Revolving Credit Facility in the manner set forth in paragraph (d) below.
(d) Payments in respect of the Revolving Credit Facility pursuant to this Section 5.6, first, shall be applied ratably (i) to reimburse the Issuing Lenders for all unreimbursed L/C Disbursements for which the Issuing Lenders have not received payment from the Revolving Credit Lenders pursuant to the third sentence of Section 2.6(b), (ii) to reimburse those Revolving Credit Lenders which, pursuant to the fourth sentence of Section 2.6(b), have previously made payments to an Issuing Lender pursuant to the third sentence of Section 2.6(b) and (iii) to repay Swing Line Loans which are not Refunded Swing Line Loans, second, shall be applied ratably to repay outstanding Revolving Credit Loans, and third, shall be used to Cash Collateralize all undrawn Letters of Credit then outstanding. Any amount remaining following the application required by the preceding sentence in full may be retained by the Company for use in the ordinary course of business, and the Revolving Credit Facility shall be automatically and permanently reduced dollar for dollar by the amount so retained.
(e) [Reserved].
(f) Upon receipt by the Company or any of its Subsidiaries of the amounts required to be paid pursuant to paragraph (b) above from any Asset Sale consisting of the sale of shares of capital stock of any Subsidiary of the Company (or, upon receipt by the Company or its Subsidiaries of such amounts as are permitted to be retained in accordance with paragraph (b) of this Section 5.6), (i) the Administrative Agent shall release to the Company, without representation, warranty or recourse, express or implied, those of such shares of capital stock of such Subsidiary held by it as Pledged Stock (as defined in the Pledge Agreement) and (ii) the Agents and the Lenders will, upon the request of the Company, 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.
(g) In the event and on such occasion that the Aggregate Revolving Credit Extensions of Credit and Swing Line Loans exceed the aggregate Revolving Credit Commitments, the Company shall prepay Revolving Credit Loans or Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the Administrative Agent) in an aggregate amount equal to such excess.
(h) The Company shall give the Administrative Agent (which shall promptly notify each Lender) notice as specified in Section 5.5 of each prepayment pursuant to Section 5.5 setting forth the date and amount thereof. Prepayments of Eurodollar Loans pursuant to this Section 5.6, if not on the last day of the Interest Period with respect thereto, shall, at the Company’s option, as long as no Default or Event of Default has occurred and is continuing, be prepaid subject to the provisions of Section 5.21 or such prepayment (after application to any ABR Loans, in the case of prepayments by the Company) shall be deposited with the Collateral Agent as cash collateral for such Eurodollar Loans on terms reasonably satisfactory to the Collateral Agent and thereafter shall be applied to the prepayment of the Eurodollar Loans on the last day of the respective Interest Periods for such Eurodollar Loans next ending most closely to the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this contemplated by paragraph (b) above. After such application, any remaining interest earned on such cash collateral shall not apply be paid to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this AgreementCompany.
(ci) If on any date SuperHoldingsUpon the Revolving Credit Termination Date the Company shall, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided furthereach then outstanding Letter of Credit, that notwithstanding the foregoingif any, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder either (i) in the case cause such Letter of prepayment Credit to be cancelled without such Letter of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, Credit being drawn upon or (ii) in Cash Collateralize the case Revolving L/C Obligations with respect to such Letter of prepayment Credit with a letter of credit issued by banks or a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice bank satisfactory to the Administrative Agent on or prior terms satisfactory to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Agent.
Appears in 2 contracts
Samples: Credit Agreement (Be Aerospace Inc), Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. (a) In Upon the event and on such occasion that:
(i) the Exposure occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Casualty Event or Asset Sale (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans that is not otherwise permitted pursuant to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofSection 9.09), the Borrower shall, to the extent that the aggregate amount of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with Net Cash Proceeds received by Borrower and its Subsidiaries (and not paid to the Administrative Agent for the benefit as a prepayment of the Lenders on terms and conditions satisfactory Loans) in respect of all such Casualty Events or Asset Sales, when taken together, exceeds $1,000,000 in such fiscal year, the Borrower shall make a mandatory prepayment of the Loans in an amount equal to one hundred percent (100%) of the Administrative Agent.
(b) If any Indebtedness shall be incurred Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries with respect to such Casualty Event or Asset Sale, an as the case may be, with such amount equal of Net Cash Proceeds being allocated to 100% the prepayment of principal, the payment of accrued and unpaid interest on such principal amount of the Loans being prepaid and the Prepayment Premium such that the full Prepayment Price applicable to such mandatory prepayment is paid with such Net Cash Proceeds; provided that, so long as no Default has occurred and is continuing or shall result therefrom, if, within five (5) Business Days following the occurrence of any such Casualty Event or Asset Sale, a Responsible Officer of the Borrower delivers to the Administrative Agent a notice to the effect that the Borrower or the applicable Subsidiary intends to apply the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on from such Casualty Event or Asset Sale, to repair, refurbish, restore, replace or rebuild the date of receipt of asset subject to such Casualty Event or Asset Sale, then such Net Cash Proceeds as set forth of such Casualty Event or Asset Sale may be applied for such purpose in Section 2.9(d)lieu of such mandatory prepayment to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually applied for such purpose, provided, howeverfurther, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (orthat, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such that Net Cash Proceeds have not been so applied within one hundred and eighty (180) days following the occurrence of such Casualty Event or Asset Sale, the Borrower shall be applied on such date as set forth make a mandatory prepayment of the Loans in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to one hundred percent (100%) of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount unused balance of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective or any of its Subsidiaries and not previously applied toward with respect to such Casualty Event or Asset Sale, as the case may be, with such amount of Net Cash Proceeds being allocated to the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determinedprincipal, the allocation payment of accrued and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, unpaid interest on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in being prepaid and the prepaid Borrowing. Prepayments shall be accompanied by accrued interest Prepayment Premium such that the full Prepayment Price applicable to the extent required by Section 2.18such mandatory prepayment is paid with such Net Cash Proceeds.
Appears in 2 contracts
Samples: Credit Agreement (Zymergen Inc.), Credit Agreement (Zymergen Inc.)
Mandatory Prepayments. Borrower shall make mandatory prepayments (“Mandatory Prepayments”) as set forth in this Section. Borrower shall make Mandatory Prepayments to the Senior Note Holders for amounts owing under the Senior Notes and to the lenders under the Rabobank Agreement (a) In in an amount equal to 100% of the event Net Proceeds of Stock and on such occasion that:
(i) 100% of the Exposure Net Cash Proceeds received by Borrower or a Subsidiary in respect of any Lender exceeds such Lenderoffering by Borrower of Subordinated Debt (other than an offering which increases the outstandings under Borrower’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser Subordinated Loan Certificates, or Subordinated Capital Certificates of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans Interest in existence prior to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofExecution Date and described on Exhibit 4.7 hereto), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
; (b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, in an amount equal to 100% of the Net Cash Proceeds thereof received during from any sale or other disposition by Borrower of any inventory (other than sales of inventory in the ordinary course); (c) in an amount equal to 100% of the Net Cash Dominion Period shall Proceeds from any other sale or other disposition (other than sales of inventory in the ordinary course of business, any sale of the assets of the Pork Division, any sale or other disposition of the SSC Securities and any sale or dispositions permitted by Section 10.5(d)), or series of related sales or dispositions, by Borrower of any assets not otherwise referenced above in this Section, where the Net Cash Proceeds exceed $5,000,000 for any such sale or $10,000,000 in the aggregate for all such sales; and (d) in an amount equal to 100% of the Net Cash Proceeds from the sale or other disposition of the SSC Securities if Borrower would be applied on the date of receipt otherwise obligated to use any portion of such Net Cash Proceeds as set forth in to redeem any of the Senior Unsecured Notes under the Senior Unsecured Note Documents. Each such Mandatory Prepayment of Net Cash Proceeds or Net Proceeds of Stock shall be due immediately upon the receipt by Borrower of such Net Cash Proceeds or Net Proceeds of Stock. All Mandatory Prepayments required pursuant to this Section 2.9(d)shall be distributed (i) to the Senior Note Holders for amounts owing under the Senior Notes and to the lenders under the Rabobank Agreement, pro rata, based upon the principal outstanding under their respective Senior Notes and Revolving Loans; provided, however, that if the foregoing requirements of Senior Note Holders (other than CoBank) waive in writing their right to receive a Mandatory Prepayment pursuant to this paragraph (b) shall not apply to any Indebtedness incurred Section 4.7 or comparable provision in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Senior Notes, Borrower shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, make such Mandatory Prepayment to the lenders under the Rabobank Agreement and to CoBank hereunder only and in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect their pro rata share as calculated above. The Mandatory Prepayments made to the relevant Reinvestment Event CoBank as required by this Section shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Subsection 4.6.2 hereof.
Appears in 2 contracts
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries after the Closing Date (excluding (i) the proceeds of a Permitted Receivables Financing, and (ii) any other permitted Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% the Applicable Prepayment Percentage of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such issuance or incurrence toward the prepayment of such Net Cash Proceeds the Term Loans as set forth in Section 2.9(d2.13(c), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(cb) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof (or will be delivered concurrently with the next compliance certificate to be delivered pursuant to Section 6.2(b)), the Applicable Prepayment Percentage of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 2.9(d2.13(c); 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 Term Loans as set forth in Section 2.9(d2.13(c); and provided further, that notwithstanding .
(c) The application of any prepayment pursuant to Section 2.13(a) or (b) shall be made ratably to the foregoing, such Net Cash Proceeds which are not subject Term Loans based on the outstanding respective principal amounts thereof. Partial prepayments of the Term Loans pursuant to a Reinvestment Notice this Section 2.13 shall not be required to be applied as set forth to the remaining installments thereof in the direct order of maturity. The application of any prepayment of Term Loans pursuant to this Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings2.13 shall be made, Holdingsfirst, the Borrower to ABR Loans and their respective Subsidiaries and not previously applied toward the second, to Eurodollar Loans. Each prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with under this Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments 2.13 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 2 contracts
Samples: Credit Agreement (Tenneco Inc), Credit Agreement (Tenneco Inc)
Mandatory Prepayments. (a) In Not later than the event and on such occasion that:
(i) fifth Business Day following the Exposure receipt of Net Cash Proceeds in respect of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Asset Sale or any Recovery Event (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent that such Net Cash Proceeds exceed $1,000,000 in the aggregate), the Borrowers shall apply 100% of the Net Cash Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.13(e); provided that: so long as no Event of Default shall then exist or would arise therefrom, such proceeds shall not be required to be so applied on such date to the extent that such Net Cash Proceeds are expected to be used, or committed to be used, to acquire assets useful (in the good faith judgment of the U.S. Borrower) in the Borrowers’ (or their Restricted Subsidiaries’) business within 12 months following the date of such excess, Asset Sale or Recovery Event; provided that if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if the Borrowers or any of their Restricted Subsidiaries have entered into a binding contractual commitment for reinvestment within such 12-month period, not so reinvested within 18 months following the date of such Asset Sale or Recovery Event), such unused portion shall be applied on the last day of such period as a mandatory prepayment as provided in this Section 2.13(a); provided further that if at the time that any such prepayment would be required, the Borrowers or any Restricted Subsidiary is required to repay, redeem or repurchase or offer to repay, redeem or repurchase Indebtedness that is secured on a pari passu basis (but without regard to control of remedies) with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Sale or Recovery Event (such Indebtedness required to be repaid, redeemed or repurchased or offered to be so repurchased, “Other Applicable Indebtedness”), then the applicable Borrower or applicable Restricted Subsidiary may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of Revolving Credit the Loans then outstanding is less than and Other Applicable Indebtedness at such time so long as the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, net proceeds required to be allocated to the extent Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the balance Loans and to the repurchase, redemption or prepayment of such excessOther Applicable Indebtedness, replace outstanding Letters and the amount of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit prepayment of the Lenders on terms and conditions satisfactory Loans that would have otherwise been required pursuant to the Administrative Agentthis Section 2.13(a) shall be reduced accordingly.
(b) If any Indebtedness No later than the fifth Business Day after the date on which financial statements with respect to a fiscal year of Holdings are delivered pursuant to Section 5.04(a), beginning with the fiscal year ending on or about December 31, 2016, the Borrowers shall prepay outstanding Loans in accordance with Section 2.13(e) in an aggregate principal amount equal to the excess (if any) of (x) 50% of Excess Cash Flow for the fiscal year then ended (provided that such percentage shall be incurred by SuperHoldingsreduced to 25% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 2.00 to 1.00 but greater than 1.50 to 1.00, Holdingsand to 0% if the Total Net Leverage Ratio as of the end of such fiscal year was less than or equal to 1.50 to 1.00) minus (y) Voluntary Prepayments made during such fiscal year, on a dollar-for-dollar basis, other than to the extent any such Voluntary Prepayment is funded with the proceeds of new long-term Indebtedness.
(c) In the event that any Borrower or any Restricted Subsidiary shall receive Net Cash Proceeds from the issuance, offering, placement or incurrence of their respective SubsidiariesIndebtedness for money borrowed of any Borrower or any Restricted Subsidiary (other than any cash proceeds from the issuance, offering, placement or incurrence of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrowers shall, substantially simultaneously with (and in any event not later than the fifth Business Day next following) the receipt of such Net Cash Proceeds by the Borrowers or such Restricted Subsidiary, apply an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred prepay outstanding Loans in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d2.13(e); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described Upon the earliest to occur of (i) the termination of the Acquisition Agreement in Sections 2.9(baccordance with its terms, (ii) Capitol ceasing all operations except for the purposes of winding up, redeeming 100% of the shares sold in Capitol’s initial public offering for cash and dissolving and liquidating and (ciii) August 1, 2015, the Borrowers shall, not later than the second Business Day following the date of such occurrence, apply an amount equal to $30,000,000 to prepay outstanding Loans in accordance with Section 2.13(e) (subject the “Outside Date Repayment”).
(e) So long as any Loans are outstanding, mandatory prepayments of outstanding Loans under this Agreement shall be applied pro rata to the terms each Class of the Intercreditor AgreementLoans (except, in the case of amounts required to mandatorily prepay the Loans pursuant to Sections 2.13(b), such mandatory prepayments shall be allocated to each of the U.S. Term Loans and the Cayman Term Loans based on the amount of Excess Cash Flow generated by each of the U.S. Borrower and the Domestic Subsidiaries, on the one hand, and the Cayman Borrower and the Foreign Subsidiaries, on the other hand, as determined in good faith by the U.S. Borrower) and within each Class to any insurance or condemnation proceedsinstallments thereof (1) in direct order of maturity of the remaining installments for the next eight amortization payments following the relevant prepayment event, and (2) thereafter, ratably to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstandingremaining installments.
(f) The Each Borrower shall notify 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 each Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three Business Days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid. The Administrative Agent shall promptly advise the Lenders of any notice given (and the contents thereof) pursuant to this Section 2.13. Each such Lender may reject all of its pro rata share of the prepayment (excluding the Outside Date Prepayment) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent (and, in and the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not Borrowers no later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M.5:00 P.M., New York City time, one (1) Business Day before after the date of prepayment or (iii) in such Lender’s receipt of such notice from the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepaymentAdministrative Agent. Each such notice shall be irrevocable and Rejection Notice from a given Lender shall specify the prepayment date and the principal amount of each Borrowing or portion thereof the prepayment to be prepaid and, in rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the case of a mandatory prepayment, set forth a reasonably detailed calculation Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the prepayment to be rejected, any such failure will be deemed an acceptance of the total amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment . Any Declined Proceeds may be revoked retained by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfiedBorrowers. Promptly following receipt All prepayments of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Borrowings under this Section 2.13 shall be in an amount that would subject to Section 2.16, but shall otherwise be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of payment.
(g) In connection with any mandatory prepayments by the Borrowers of the Loans pursuant to this Section 2.13, such prepayments shall be applied on a pro rata basis to the then outstanding Loans being prepaid irrespective of whether such outstanding Loans are Alternate Base Rate Loans or Eurodollar Rate Loans; provided that if no Lenders exercise the right to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.13(f), then, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied first to Loans that are Alternate Base Rate Loans to the full extent thereof before application to Loans that are Eurodollar Rate Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 2.16. Notwithstanding any other provisions of this Section 2.13, if the Borrowers determine in good faith that the repatriation by any Foreign Subsidiary, of any amounts required to mandatorily prepay the Loans pursuant to Sections 2.13(a) or (b) above would result in material and adverse tax consequences (including from withholding tax), taking into account any foreign tax credit or benefit actually realized in connection with such repatriation (such amount, a “Restricted Amount”), as reasonably determined by the Borrowers, the amount that the U.S. Borrower shall be required to mandatorily prepay pursuant to Sections 2.13(a) or (b) above, as applicable, shall be reduced by the Restricted Amount until such time as such Foreign Subsidiaries may repatriate to the U.S. Borrower the Restricted Amount without incurring such material and adverse tax liability (the Borrowers hereby agreeing to use commercially reasonable efforts to, and to cause each of its Foreign Subsidiaries to, promptly take all available actions reasonably required to mitigate such tax liability); provided that to the extent that the repatriation of any Net Cash Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the Net Cash Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to the immediately preceding clause shall be promptly applied to the repayment of the Loans pursuant to Sections 2.13(a) or (b) as otherwise required by Section 2.18above (without regard to this paragraph).
Appears in 2 contracts
Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.), Credit Agreement (Lindblad Expeditions Holdings, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[Reserved].
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2 but including any Overadvance set forth in Section 2.8(a), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e); provided, that, 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion[Reserved].
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in reverse order of maturity and in accordance with Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (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); and third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the replacement of outstanding Letters of Credit and/or 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 established with the Administrative Agent for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender. 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 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 agrees that during shall deliver to the period from September 1 through December 31 Administrative Agent and each Term Lender notice of each calendar year there prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a period “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of at least 30 consecutive days during which there are no Loans outstandingsuch prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to 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 three (3) Business Days prior to the Mandatory Prepayment Date.
(f) The Borrower shall notify deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction and (ii) to the extent practicable, at least ten days prior written notice of such prepayment or reduction (and the Administrative Agent (and, in shall promptly provide the case same to each Lender). Each notice of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date or reduction date, the Type of each Loan being prepaid and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, prepaid.
(g) No prepayment fee shall be payable in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt respect of any such notice (other than a notice relating solely mandatory prepayments made pursuant to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in this Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.12.
Appears in 2 contracts
Samples: Credit Agreement (Kaltura Inc), Credit Agreement (Kaltura Inc)
Mandatory Prepayments. (a) In The Borrower shall prepay the event and on outstanding Loans with Loss Proceeds received by the Borrower as to any Event of Loss in accordance with the provisions of Section 4.6 of the Depositary Agreement, subject, in each case, to the Borrower’s right to apply such occasion thatLoss Proceeds to Restoration Work as contemplated in Section 4.6 of the Depositary Agreement.
(b) The Borrower shall prepay the outstanding Loans with the proceeds:
(i) of the Exposure Borrower’s voluntary disposition of any Lender exceeds such Lender’s Revolving Credit Commitment; orenergy server or Project;
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; refund claims received by the Borrower shall repay pursuant to Sections 5.4(c) and 5.7(b) of the Revolving Credit PUMA, other than amounts reserved for payment to the Offtakers, in each case in accordance with the provisions of the applicable ESA; and
(iii) from any payment of Termination Value or Early Termination Fee, which the Borrower may receive upon the occurrence of a Customer Default or Host Default, as applicable, under each ESA (as defined therein), in each case, in amounts determined as follows:
A. with respect to such proceeds affecting up to five (5) MW (in the aggregate) of energy servers or Projects disposed or otherwise removed during the term of the Loans, an amount such that after such prepayment, the Construction Loans and the Term Loans will fully amortize over a [***]-year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the extent of [***] Confidential Treatment Requested such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent incentives are for the benefit of the Lenders Borrower), yielding projected minimum annual Debt Service Coverage Ratios of (i) [***] through the Final Maturity Date based on terms a portfolio capacity factor of 94.85%, as evidenced by Updated Lender Base Case Projections (except that for purposes of this section the minimum annual Debt Service Coverage Ratio shall be [***]) as confirmed by the Independent Engineer and conditions satisfactory (ii) 1.00:1.00 through the Final Maturity Date based on a portfolio capacity factor of [***], as evidenced by Updated Downside Sizing Case Projections, in each case as confirmed by the Independent Engineer;
B. with respect to such proceeds affecting in excess of [***] ([***]) MW (in the aggregate) but not more than [***] ([***]) MW (in the aggregate) of energy servers or Projects disposed or otherwise removed during the term of the Loans, in an amount such that after such prepayment, the Construction Loans and the Term Loans will fully amortize over a [***]- year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the Administrative Agent.
extent such incentives are for the benefit of the Borrower), yielding projected minimum annual Debt Service Coverage Ratios of (bi) If any Indebtedness [***] through the Final Maturity Date based on a portfolio capacity factor of [***], as evidenced by Updated Lender Base Case Projections (except that for purposes of this Section the minimum annual Debt Service Coverage Ratio shall be incurred [***]) as confirmed by SuperHoldingsthe Independent Engineer and (ii) 1.00:1.00 through the Final Maturity Date based on a portfolio capacity factor of [***], Holdingsas evidenced by Updated Downside Sizing Case Projections, in each case as confirmed by the Borrower Independent Engineer; and
C. with respect to such proceeds affecting in excess of [***] ([***]) MW (in the aggregate) of energy servers or any Projects disposed or otherwise removed during the term of their respective Subsidiariesthe Loans, in an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt [***] percent ([***]) of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementproceeds.
(c) If on The Borrower shall prepay the outstanding Loans with the proceeds in excess of [***] dollars ([***]) from the receipt of proceeds from any date SuperHoldings, Holdings, single sale or disposition of assets other than pursuant to Section 2.13(b) or in excess of [***] dollars ([***]) in the aggregate for all such dispositions or receipts by the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in during the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment term of the Loans shall exceed $1,000,000(excluding the sale of energy, capacity or ancillary services in the ordinary course of business or other sales permitted pursuant to Section 6.5 of this Agreement).
(d) All such amounts described in Sections 2.9(b) and (c) (subject The Borrower shall prepay the outstanding Loans with the net proceeds received by the Borrower under the Policy pursuant to the terms of the Intercreditor Agreement, “One-Time Payment Option” (as defined in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(fPolicy). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during shall prepay the period from September 1 through December 31 outstanding Loans with amounts on deposit in the Suspense Account to the extent required pursuant to Section 4.5 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.the Depositary Agreement. [***] Confidential Treatment Requested
(f) Upon the occurrence and during the continuance of an Event of Default, at the discretion of the Required Lenders and without prejudice to the rights and remedies of the Collateral Agent, the Administrative Agent and the Lenders as set forth herein, the Borrower shall prepay the outstanding Loans in accordance with the provisions of Section 8.11 of the Depositary Agreement.
(g) If on the Term Conversion Date, COO has not occurred for Sites having an aggregate capacity of at least the Minimum Capacity, the Borrower shall prepay the outstanding Loans in an amount such that after such prepayment, the Term Loan will fully amortize over a [***]-year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the extent such incentives are for the benefit of the Borrower), yielding projected minimum annual Debt Service Coverage Ratios of (i) [***] through the Final Maturity Date based on a portfolio capacity factor of [***], as evidenced by Updated Lender Base Case Projections as confirmed by the Independent Engineer and (ii) [***] through the Final Maturity Date based on a portfolio capacity factor of [***], as evidenced by Updated Downside Sizing Case Projections as confirmed by the Independent Engineer (the “Conversion Payoff”).
(h) The Borrower shall notify prepay the Administrative Agent outstanding Loans with Excess Cash Flow (and, as defined in the case Depositary Agreement) in accordance with Clause Ninth of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmissionSection 4.2(e) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Depositary Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Bloom Energy Corp), Credit Agreement (Bloom Energy Corp)
Mandatory Prepayments. (a) In the event and on such occasion that:
If Indebtedness shall be issued or incurred by any Loan Party (i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
not permitted to be incurred or issued pursuant to Section 7.2 or (ii) the Total Exposure exceeds the lesser of (x) Total Revolving that is intended to constitute Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent Agreement Refinancing Indebtedness in respect of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesTerm Loans, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied as soon as practicable but in any event within five (5) Business Days after such issuance or incurrence toward the prepayment of the Term Loans on the date of receipt of a pro rata basis (except, as to Term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Net Cash Proceeds Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan) as set forth in Section 2.9(d2.11(d), ; provided, howeverthat all prepayments under this Section 2.11(a) shall be accompanied by the Repricing Premium, that the foregoing requirements of this paragraph if applicable.
(b) shall not apply Subject to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
clause (ce) If below, if on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then existsEvent, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such as soon as practicable but in any event within ten (10) days after the date of receipt thereof toward the prepayment of the Tranche B Term Loans as set forth in Section 2.9(d2.11(d) on a pro rata basis (except, as to Term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan); provided, 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 Tranche B Term Loans as set forth in Section 2.9(d2.11(d); and provided provided, further, that notwithstanding with respect to any prepayment event referenced in this paragraph (b), (i) the foregoingBorrower shall not be obligated to make any prepayment otherwise required by this paragraph (b) unless and until the aggregate amount of Net Cash Proceeds from all such Asset Sale and Recovery Events, after giving effect to the reinvestment rights set forth herein, exceeds $5,000,000 (the “Prepayment Trigger”) in any fiscal year of the Borrower, but then from all such Net Cash Proceeds (excluding amounts below the Prepayment Trigger) and (ii) the Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase First Lien Senior Secured Notes or any other Indebtedness secured by the Collateral on a pari passu basis with the Liens securing the Obligations (the “Other Applicable Indebtedness”) to the extent required pursuant to the terms of the documentation governing such Other Applicable Indebtedness, in which are not subject to a Reinvestment Notice shall not be case, the amount of prepayment required to be applied as set forth in made with respect to such Net Cash Proceeds pursuant to this Section 2.9(d2.11(b) until shall be deemed to be the date upon which amount equal to the aggregate product of (x) the amount of such Net Cash Proceeds received multiplied by SuperHoldings(y) a fraction, Holdingsthe numerator of which is the outstanding principal amount of Term Loans required to be prepaid pursuant to this paragraph (b) and the denominator of which is the sum of the outstanding principal amount of such Other Applicable Indebtedness required to be prepaid pursuant to the terms of the documents governing such Other Applicable Indebtedness and the outstanding principal amount of Term Loans required to be prepaid pursuant to this paragraph.
(c) Subject to clause (e) below, if, for any fiscal year of the Borrower commencing with the fiscal year ending September 30, 2015, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply an amount equal to (i) the ECF Percentage of such Excess Cash Flow less (ii) the aggregate principal amount of all prepayments of Revolving Loans and their respective Subsidiaries Swingline Loans made during such fiscal year to the extent accompanying permitted optional reductions of the Revolving Commitments and not previously applied the aggregate amount of cash used for all optional prepayments of Term Loans made during such fiscal year, toward the prepayment of the Term Loans as set forth in Section 2.11(d) on a pro rata basis (except, as to term Loans made pursuant to an Incremental Facility Amendment or a Refinancing Amendment, as otherwise set forth in such Incremental Facility Amendment or a Refinancing Amendment, or as to a Replacement Tranche B Term Loan\). Each such prepayment shall exceed $1,000,000be made on a date (an “Excess Cash Flow Application Date”) no later than five (5) Business Days after the earlier of (i) the date on which the financial statements of the Borrower 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.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice Tranche B Term Loans pursuant to Section 2.11 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepaymentto Eurodollar Loans; provided that, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that application would be permitted in the case of an advance of a Borrowing of the same Type as provided in inconsistent with Section 2.12.17(b), then Section 2.17(b) shall apply. Each prepayment of a Borrowing shall be applied ratably to the Tranche B Term Loans included in the prepaid Borrowing. Prepayments under this Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid and by any amounts payable pursuant to Section 2.20.
(e) Notwithstanding any other provisions of this Section 2.11, (i) to the extent that any of or all the Net Cash Proceeds of any Disposition by a Foreign Subsidiary or Domestic Foreign Holding Company giving rise to a prepayment pursuant to Section 2.11(b) (a “Foreign Disposition”), the Net Cash Proceeds of any such prepayment event pursuant to Section 2.11(b) from a Foreign Subsidiary (a “Foreign Prepayment Event”), or Excess Cash Flow would be (x) prohibited or delayed by applicable local law, (y) restricted by applicable organizational or constitutive documents or any agreement or (z) subject to other onerous organizational or administrative impediments, from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans as provided in Section 2.11(b) or (c), as the case may be, and instead, such amounts may be retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company (the Borrower hereby agrees to use commercially reasonable efforts (as determined in the Borrower’s reasonable business judgment) to otherwise cause the applicable Foreign Subsidiary to within one year following the date on which the respective payment would otherwise have been required, promptly take all actions reasonably required by the applicable local law, applicable organizational or constitutive impediment or other impediment to permit such repatriation), and if within one year following the date on which the respective payment would otherwise have been required, such repatriation of any such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable law, applicable organizational or constitutive impediment or other impediment, such repatriation will be promptly effect and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than five (5) Business Days after such repatriation could be made) applied (net of additional taxes, costs and expenses payable or reserved against as a result thereof) (whether or not repatriation actually occurs) to the repayment of the Term Loans pursuant to this Section 2.182.11 to the extent provided herein and (ii) to the extent that Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition, any Foreign Prepayment Event or Excess Cash Flow would have an adverse tax cost consequence with respect to such Net Cash Proceeds or Excess Cash Flow (which for the avoidance of doubt, includes, but is not limited to, any prepayment whereby doing so Holdings, the Borrower, any Restricted Subsidiary or any of their respective affiliates and/or equity partners would incur a tax liability, including a tax dividend, deemed dividend pursuant to Code Section 956 or a withholding tax), the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary or Domestic Foreign Holding Company. The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
(f) In connection with (i) any optional prepayment of borrowings hereunder, the Borrower making the prepayment or (ii) any mandatory prepayment of borrowings hereunder, the Borrower making the prepayment shall, in each case, subject to the provisions of this paragraph and paragraph (d) of this Section, select the borrowing or borrowings to be prepaid and shall specify such selection in the notice of such prepayment. The Administrative Agent will promptly notify each Lender holding the applicable Class of Term Loans of the contents of the Borrower’s prepayment notice and of such Lender’s pro rata share of the prepayment. Each such Term Loan Lender may reject all (but not less than all) of its pro rata share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (b) or (c) of this Section 2.11 by providing notice to the Administrative Agent at or prior to the time of such prepayment; provided that for the avoidance of doubt, no Lender may reject any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness. Any Declined Proceeds remaining thereafter shall be retained by the Borrower (“Retained Declined Proceeds”).
(g) Notwithstanding anything herein to the contrary, the Lenders holding any Initial Term Loans shall always be entitled to pro rata payment in respect of such Initial Term Loans.
Appears in 2 contracts
Samples: Credit Agreement (National Mentor Holdings, Inc.), Credit Agreement (National Mentor Holdings, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure Borrower receives cash consideration from the issuance or sale of any Lender exceeds such LenderDisqualified Equity Interests or any of the Borrower’s Revolving Credit Commitment; or
Subsidiaries receives cash consideration from the issuance or sale of any of their respective Equity Interests (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excessin each case, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less other than the amount issuance of such excess (because L/C Obligations Equity Interests that do not constitute a portion thereofDisqualified Equity Interests in exchange for cancellation of Indebtedness), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, or the Borrower or any of their respective Subsidiariesits Subsidiaries receives cash consideration from the incurrence by any of them of any Indebtedness for borrowed money (other than Indebtedness under this Agreement, Permitted Indebtedness (other than as noted in the proviso in this paragraph), and Permitted Intercompany Advances), then, in each case, within three Business Days after receipt of such consideration by any such Person, the Borrower shall make a mandatory prepayment of the Loan in an aggregate amount equal to 100% of the Net Cash Proceeds thereof such consideration received during any Cash Dominion Period shall be applied on the date by such Person (net of receipt of such Net Cash Proceeds as set forth in Section 2.9(dreasonable related expenses), ; provided, however, that notwithstanding anything to the foregoing requirements of contrary contained in this paragraph Section 2.05(a) but subject to Section 2.05(e), Section 2.05(f) and Section 2.06), (b1) shall not apply to if the Borrower issues any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, HoldingsAdditional Unsecured Subordinated Indebtedness, the Borrower or shall within three Business Days after receipt of any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and cash consideration for such issuance make a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the mandatory prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject an aggregate amount to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in 75% of such consideration received by the case Borrower (net of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepaymentreasonable related expenses), (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount 50% of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked consideration received by the Borrower (by notice net of reasonable related expenses) if after giving pro forma effect to the Administrative Agent on or prior to incurrence of Additional Unsecured Subordinated Indebtedness, the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders ratio of the contents thereof. Each partial voluntary prepayment aggregate principal amount of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing funded Indebtedness of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to Borrower and its Subsidiaries (including the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.Loans, any 1.875% Notes, 2.750% Notes,
Appears in 2 contracts
Samples: Credit Agreement (Powerwave Technologies Inc), Credit Agreement (Powerwave Technologies Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) No later than the Exposure fifth Business Day following the receipt of Net Proceeds of Property-Level Subsidiary Refinancing Indebtedness, the Borrowers shall apply an amount equal to the Required Percentage of such Net Proceeds received with respect thereto (the “Subject Refinancing Proceeds”) to prepay the outstanding principal amount of Subject Loans; provided that (A) the Parent, BPR or any of their respective Subsidiaries in their sole discretion may, in lieu of making a prepayment pursuant to this Section 2.11(b)(i), use the Subject Refinancing Proceeds within 180 days following receipt thereof to (I) make Capital Expenditures reasonably expected by the Borrower Representative to be made during such period or (II) make Restricted Payments reasonably expected by the Borrower Representative to be made during such period in order to maintain the REIT status of any Lender exceeds Loan Party (provided that to the extent such Lender’s Revolving Credit Commitment; orCapital Expenditures or Restricted Payments, as applicable, are not made within such 180 day period, the Subject Loans shall be repaid with any such remaining excess amount of Subject Refinancing Proceeds at the Required Percentage then required for such prepayment within 5 Business Days after the end of such 180 day period) and (B) notwithstanding anything to the contrary contained in this Section 2.11(b)(i), in the case of Subject Refinancing Proceeds received by any non-Wholly Owned Subsidiary of the Parent or BPR, only that portion of such Subject Refinancing Proceeds that are allocable (based on economic share and not necessarily percentage ownership) to the Parent or BPR shall be subject to prepayment in accordance with this Section 2.11(b)(i).
(ii) No later than the Total Exposure exceeds fifth Business Day following the lesser receipt of (x) Total Revolving Credit Commitments and (y) Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, the Borrowing Base; the Borrower Borrowers shall repay the Revolving Credit Loans apply an amount equal to the extent Required Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto in excess of the thresholds set forth in clause (C) of this clause (ii) (and only such excessexcess amount shall be subject to prepayment) (collectively, provided that if the aggregate “Subject Disposition Proceeds”) to prepay the outstanding principal amount of Revolving Credit Loans then outstanding Subject Loans; provided that (A) if prior to the date any such prepayment is less than the amount of such excess (because L/C Obligations constitute a portion thereof)required to be made, the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with Representative notifies the Administrative Agent for of its intention to reinvest the benefit Subject Disposition Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldingsParent, Holdings, the Borrower BPR or any of their respective Subsidiaries, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Disposition Proceeds to the extent (x) the Subject Disposition Proceeds are so reinvested within 180 days following receipt thereof, or (y) the Parent, BPR or any of their respective Subsidiaries has committed to so reinvest the Subject Disposition Proceeds during such 180-day period and the Subject Disposition Proceeds are so reinvested within 180 days after the expiration of such 180-day period; it being understood that if the Subject Disposition Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay the Subject Loans with the amount of Subject Disposition Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso), (B) if, at the time that any such prepayment would be required hereunder, the Parent, BPR or any of their respective Subsidiaries is required to repay or repurchase any other Indebtedness (or offer to repay or repurchase such Indebtedness) that is secured on a pari passu basis with any Secured Obligation pursuant to the terms of the documentation governing such Indebtedness with the Subject Disposition Proceeds (such Indebtedness required to be so repaid or repurchased (or offered to be repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Disposition Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Disposition Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Disposition Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Subject Disposition Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of notice of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof (without giving effect to this proviso), (C) the obligation to make a prepayment under this Section 2.11(b)(ii) shall only apply if and to the extent (1) the aggregate amount of (x) Net Proceeds resulting from any individual Prepayment Asset Sale, together with any Prepayment Asset Sales which are in connection with the same transaction or related series of transactions and (y) Net Insurance/Condemnation Proceeds, in each case received by the Parent, BPR and/or any of their respective Subsidiaries exceeds $25,000,000 and (2) the aggregate amount of such Net Proceeds described in clause (1)(x) above resulting from Prepayment Asset Sales or such Net Insurance/Condemnation Proceeds described in clause (1)(y) above, as applicable, received by the Parent, BPR or any of their respective Subsidiaries in any Fiscal Year exceeds $150,000,000 and (D) notwithstanding anything to the contrary contained in this Section 2.11(b)(ii), in the case of Net Proceeds or Net Insurance/Condemnation Proceeds received by any non-Wholly Owned Subsidiary (direct or indirect) of the Parent or BPR, only that portion of such proceeds that are allocable (based on economic share and not necessarily percentage ownership) to the Parent or BPR shall be subject to prepayment in accordance with this Section 2.11(b)(ii) and shall be applied towards the thresholds set forth in clause (C) above.
(iii) In the event that any Borrower receives Net Proceeds from the issuance or incurrence of Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.08(c) or Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c), the Borrowers shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the relevant Borrower, apply an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that to prepay the foregoing requirements outstanding principal amount of this paragraph (b) shall not apply to any Indebtedness incurred the relevant Term Loans in accordance with Section 7.2 as in effect on the date of this Agreementclause (vi) below.
(civ) If on The Borrowers shall promptly (and in any date SuperHoldingsevent within five Business Days) prepay the Revolving Loans at any time when the aggregate principal amount of all Initial Revolving Loans, Holdingsall LC Exposure and all Swingline Exposure exceeds the Initial Revolving Credit Commitment in effect at such time, to the Borrower full extent of any such excess.
(v) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) the Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) above to the extent that the relevant Subject Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrowers of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale such amount would be prohibited under any Requirements of Law or Recovery Event conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (or, in BPR hereby agreeing to cause the event applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by Requirements of damage by casualty, Law to permit such repatriation); it being understood and agreed that if the date the repair or restoration repatriation of the relevant Property affected Subject Proceeds is completedpermitted under Requirements of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the event giving rise to the relevant Subject Proceeds (for purposes of this paragraph, the “365-Day Period”), the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds and the repatriated Subject Proceeds will be promptly (and in any event not later than two 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 required herein (without regard to this clause (v)),
(B) the Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) to the extent that the relevant Subject Proceeds are received in respect of any Joint Venture, in each case, for so long as the distribution to the Borrowers of such Subject Proceeds would be prohibited under the organizational documents governing such Joint Venture; it being understood and agreed that if the relevant prohibition ceases to exist within the 365-day period following the event giving rise to the relevant Subject Proceeds, the relevant Joint Venture will promptly distribute the relevant Subject Proceeds and the distributed Subject Proceeds will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(C) if the Borrower Representative determines in good faith that the repatriation to the Borrowers as a Cash Dominion Period then existsdistribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.11(b)(i) or (ii) above that are attributable to any Foreign Subsidiary would result in a material and adverse Tax liability (including any withholding Tax) (such amount, thena “Restricted Amount”), unless a Reinvestment Notice the amount that the Borrowers shall be delivered in respect thereofrequired to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, such Net Cash Proceeds as applicable, shall be applied on such date as set forth in Section 2.9(dreduced by the Restricted Amount; provided that to the extent that the repatriation of the relevant Subject Proceeds from the relevant Foreign Subsidiary would no longer have a material and adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds (for purposes of this paragraph, the “365-Day Period”); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Relevant Amount with respect (reduced by any relevant Taxes) and, to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries extent available and not previously applied toward to the prepayment repayment of the Term Loans pursuant to this clause (C), shall exceed $1,000,000be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above.
(dvi) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor AgreementAny Term Lender may elect, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on at or prior to the time and in the manner specified dateby the Administrative Agent, prior to any prepayment of Term Loans required to be made by any Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) if of its Applicable Percentage of such condition is not satisfiedprepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds shall first be applied to any other Class of Term Loans required to be prepaid hereunder and, then, the remaining amount thereof may be retained by the relevant Borrower. Promptly following receipt For the avoidance of doubt, no Lender may reject any such notice (other than prepayment made under Section 2.11(b)(iii) above. If any Lender fails to deliver a notice relating solely to Swing Line Loans) the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Term Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vii) Except as otherwise provided in any Refinancing Amendment or any Extension Amendment, and subject to the last sentence of this Section 2.11(b)(vii), each prepayment of Term Loans pursuant to this Section 2.11(b) shall advise be applied first to the Term A-1 Facility until the Term Loans thereunder are repaid in full, second to the Term A-2 Facility until the Term Loans thereunder are repaid in full, third to the Term B Facility until the Term Loans thereunder are repaid in full and, thereafter, ratably to any other Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of any Refinancing Indebtedness and/or any Replacement Term Loans incurred for the purpose of refinancing or replacing such Term Loans shall be applied to the applicable Class of Term Loans being refinanced or replaced). With respect to each Class of Term Loans, all prepayments accepted under this Section 2.11(b) shall be applied against the remaining scheduled installments of principal due in respect of such Class of Term Loans as directed by the relevant Borrower (or, in the absence of direction from the relevant Borrower, to the remaining scheduled amortization payments in respect of such Class of Term Loans in direct order of maturity), and each such prepayment shall be paid to the Term Lenders of such Class in accordance with their respective Applicable Percentages of the contents thereofapplicable Class. Each partial voluntary prepayment The amount of such mandatory prepayments shall be, subject to the foregoing order, applied first to the then outstanding Term Loans that are ABR Loans and then to the then outstanding Term Loans that are Eurodollar Rate Loans in a manner that minimizes the amount of any Revolving Credit Loan payments required to be made by the relevant Borrower pursuant to Section 2.16.
(viii) Prepayments made under this Section 2.11(b) shall be in an amount that would be permitted (A) accompanied by accrued interest as required by Section 2.13, (B) subject to Section 2.16 and (C) in the case of an advance prepayments of Initial Term Loans under clause (iii) above as part of a Borrowing of the same Type as provided in Repricing Transaction, subject to Section 2.1. Each prepayment of a Borrowing 2.12(f), but shall otherwise be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18without premium or penalty.
Appears in 2 contracts
Samples: Credit Agreement (Brookfield Property REIT Inc.), Credit Agreement (Brookfield Property REIT Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) Immediately upon the Exposure sale, transfer or other disposition by any Borrower of any Lender exceeds Pool Aircraft or by Holdings or a Borrower of Equity Interests in a Non-Parent Borrower or an Intermediate Lessee (each such Lender’s Revolving Credit Commitment; or
(ii) sale, transfer or other disposition, a “Disposition Event”), the Total Exposure exceeds Borrowers, or Holdings as the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower case may be, shall repay the Revolving Credit Loans to the extent of such excess, provided that if the forthwith prepay an aggregate principal amount of Revolving Credit the Outstanding ILFC Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 10075% of the Net Cash Sale Proceeds thereof received during any Cash Dominion Period shall be applied on from such Disposition Event by deposit into the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, FRBNY Account; provided that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice Borrowers shall not be required to be applied as set forth prepay the Outstanding ILFC Loans following a transfer of any Aircraft Asset to another Borrower Party in accordance with Section 2.9(d2.12(a) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000or Section 5.25.
(dii) All With respect to any Event of Loss suffered by a Pool Aircraft, the Borrowers shall, upon the receipt of any hull insurance, condemnation or other proceeds in respect of such Event of Loss, prepay an aggregate principal amount of the Outstanding ILFC Loans equal to 75% of the net proceeds received on account of such Event of Loss by deposit into the FRBNY Account; provided that such “net proceeds” shall not include any amounts described in Sections 2.9(b) and (c) (subject to the terms extent required under the applicable Lease to be paid over to such Lessee pursuant to such Lease;
(iii) Concurrently with the removal of any Pool Aircraft from the Designated Pool in accordance with Section 2.12(b) where the Borrower has notified the Lender Parties and the FRBNY that it does not intend to sell or otherwise dispose of the Intercreditor Agreementapplicable Pool Aircraft (except to the Parent Borrower or one of its Subsidiaries) or where any sale, transfer or other disposition does not result in any Net Sale Proceeds (unless (i) a Non-Pool Aircraft is being substituted for such Pool Aircraft in accordance with Section 2.12(b) or (ii) the Supplemental Pool Aircraft are being removed from the Designated Pool in accordance with Section 2.15), the Borrowers shall prepay an aggregate principal amount of the Outstanding ILFC Loans equal to 75% of the most recent Appraised Value (which shall be deemed to be $0.00 in the case of any insurance or condemnation proceeds, Pool Aircraft subject to an event described in clause (a) to the extent they arise from casualties or losses to equipment, fixtures and real propertyproviso of the definition of “Appraised Value”) of such Pool Aircraft by deposit into the FRBNY Account; and
(iv) Upon a Change in Control the Borrowers shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Outstanding ILFC Loans and third to prepay in full by deposit into the Revolving Credit Loans without FRBNY Account. If, following removal of a corresponding reduction Pool Aircraft from the Designated Pool in the Total Revolving Credit Commitments; provided that during an Event circumstances described in Section 2.07(b)(iii) (a “Removed Aircraft”), the Borrower sells such Removed Aircraft to a Person other than the Parent Borrower or one of Defaultits Subsidiaries within three months of such removal, all such amounts the Borrowers shall be applied promptly make additional prepayment in accordance with Section 2.15(f). If respect of the precise aggregate amount of insurance or condemnation proceeds allocable Outstanding ILFC Loans equal to Inventory 75% of the excess, if any, of the Net Sale Proceeds over the Appraised Value of such Removed Aircraft as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, if such Removed Aircraft were subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionclause (b)(i) above.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Credit Agreement (International Lease Finance Corp), Credit Agreement (International Lease Finance Corp)
Mandatory Prepayments. (a) In The Borrower shall, on the event date of receipt of any Net Cash Proceeds by MCRC, the Borrower or their respective Subsidiaries from (a) the sale, lease, transfer or other disposition of any assets of MCRC, the Borrower or their respective Subsidiaries (other than any sale, lease, transfer or other disposition of assets for Net Cash Proceeds in the aggregate not to exceed $25,000,000 during the term of this Agreement), (b) the incurrence or issuance by MCRC, the Borrower or their respective Subsidiaries of any Indebtedness (other than borrowings under the Revolving Credit Facility); provided, however, that if any Indebtedness is incurred for a particular acquisition or transaction and such acquisition or transaction is either unwound or not consummated, then the Net Cash Proceeds of such Indebtedness shall be used to pay back the lender of such Indebtedness, or (c) the issuance and sale by MCRC, the Borrower or their respective Subsidiaries of any Equity Interests for cash, prepay the Loans in an aggregate amount equal to such Net Cash Proceeds. The Borrower shall make such prepayment together with all accrued interest on the amount prepaid. Notwithstanding the foregoing, (1) the Borrower shall not be required to make the prepayment described in clause (a) if and to the extent that the Borrower uses such occasion that:
Net Cash Proceeds to purchase other real property assets, in a bona fide, qualified, deferred exchange under §1031 of the Code, provided that (i) the Exposure Borrower shall deposit all such Net Cash Proceeds of any Lender exceeds such Lender’s Revolving Credit Commitment; or
sale or other disposition, until required in connection with the purchase of a property, with a qualified intermediary reasonably acceptable to the Administrative Agent and (ii) such qualified intermediary shall be instructed to pay such net proceeds to the Total Exposure exceeds Administrative Agent on behalf of the lesser of Lenders in the event that either (x) Total Revolving Credit Commitments and such other real property assets are not identified within 45 days of such sale, or (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent such purchase does not occur within 180 days of such excess, provided that sale and (2) if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof)MCRC, the Borrower shall, to or their respective Subsidiaries receives Net Cash Proceeds from the extent sale of the balance of Real Estate located at 700 Xxxxxx Xxxxxx xx Xxx Xxxxxxxxx, Xxxxxxxxxx that would otherwise be required to be used to prepay the Loans, the Borrower may elect to retain such excess, replace outstanding Letters of Credit and/or deposit Net Cash Proceeds if it instead reduces the Total Commitment pursuant to §2.11 in an amount in cash in a cash collateral account established with equal to such Net Cash Proceeds that would have otherwise been used to prepay the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory Loans. Amounts repaid pursuant to the Administrative Agentthis §2.10(a) may not be reborrowed.
(b) If any Indebtedness shall be incurred by SuperHoldingstransaction to which the Borrower applies the proceeds of the Loans does not close for any reason, Holdingsor if the Borrower uses the proceeds of the Loans to make a deposit on any transaction (whether into an escrow account or otherwise) and such deposit is thereafter returned or refunded to MCRC, the Borrower or their respective Subsidiaries, then in each case, the Borrower shall, on the date such proceeds are returned to MCRC, the Borrower or any of their respective Subsidiaries, prepay the Loans in an aggregate amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall such returned amount. Amounts repaid pursuant to this §2.10(b) may not be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementreborrowed.
(c) If on any date SuperHoldings, HoldingsAs soon as possible after the Initial Funding Date, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed borrow $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay 200,000,000 under the Revolving Credit Loans without a corresponding reduction in Facility, and the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City timeshall, on the date such loan proceeds are received by it, prepay $200,000,000 of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof the Loans. Amounts repaid pursuant to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment this §2.10(c) may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be reborrowed in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section accordance with §2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Term Loan Agreement (Mack Cali Realty L P), Term Loan Agreement (Mack Cali Realty Corp)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[reserved].
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2 but including any Overadvance set forth in Section 2.8(a), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e); provided, that, 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 a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion[reserved].
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied to the prepayment of installments due in respect of the Term Loans in reverse order of maturity and in accordance with Sections 2.3 and 2.18(b) (provided that any Term Lender may decline any such prepayment (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); and third, to the extent of any residual, if no Term Loans or Revolving Loans remain outstanding, to the replacement of outstanding Letters of Credit and/or 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 established with the Administrative Agent for the benefit of the L/C Lenders on terms and conditions satisfactory to the Issuing Lender. 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 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 agrees that during shall deliver to the period from September 1 through December 31 Administrative Agent and each Term Lender notice of each calendar year there prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a period “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of at least 30 consecutive days during which there are no Loans outstandingsuch prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to 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 three (3) Business Days prior to the Mandatory Prepayment Date.
(f) The Borrower shall notify deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction and (ii) to the extent practicable, at least ten days prior written notice of such prepayment or reduction (and the Administrative Agent (and, in shall promptly provide the case same to each Lender). Each notice of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date or reduction date, the Type of each Loan being prepaid and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, prepaid.
(g) No prepayment fee shall be payable in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt respect of any such notice (other than a notice relating solely mandatory prepayments made pursuant to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in this Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.12.
Appears in 2 contracts
Samples: Credit Agreement (Alkami Technology, Inc.), Credit Agreement (Alkami Technology, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) Immediately upon the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred receipt by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries of the proceeds of any voluntary or involuntary sale or disposition by Borrower or any of its Subsidiaries of property or assets (including casualty losses or condemnations but excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a), (b), (c), or (d) of the definition of Permitted Dispositions), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of the Net Cash Proceeds thereof (including condemnation awards and payments in lieu thereof) received during any Cash Dominion Period by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall be applied on have occurred and is continuing, (B) Borrower shall have given Agent prior written notice of Borrower’s intention to apply such monies to the date 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 Borrower or its Subsidiaries, (C) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, and (D) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such Net Cash Proceeds as set forth monies, Borrower and its Subsidiaries shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in Section 2.9(d)the business of Borrower and its Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, providedpurchase or construction being made or completed, howeverin which case, that any amounts remaining in the foregoing requirements of this paragraph (b) cash collateral account shall not apply be paid to any Indebtedness incurred Agent and applied in accordance with Section 7.2 as 2.4(d). Nothing contained in effect on this Section 2.4(c)(i) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(ii) Immediately upon the date receipt by Borrower or any of its Subsidiaries of any Extraordinary Receipts, Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of such Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iii) Immediately upon the issuance or incurrence by Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness permitted under Section 6.1(a), (b), (c), (d), (e), (f), (g) or (h)), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d) in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such issuance or incurrence. The provisions of this Section 2.4(c)(iii) shall not be deemed to be implied consent to any such issuance or incurrence otherwise prohibited by the terms and conditions of this Agreement.
(civ) If on any date SuperHoldingsWithin 10 days of delivery to Agent and the Lenders of audited annual financial statements pursuant to Section 5.3, Holdingscommencing with the delivery to Agent and the Lenders of the financial statements for Borrower’s fiscal year ended December 31, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (2008 or, in if such financial statements are not delivered to Agent and the event of damage by casualty, Lenders on the date such statements are required to be delivered pursuant to Section 5.3, 10 days after the repair or restoration date such statements are required to be delivered to Agent and the Lenders pursuant to Section 5.3, Borrower shall prepay the outstanding principal amount of the relevant Property is completedObligations in accordance with Section 2.4(d) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to 50% of the Reinvestment Prepayment Amount Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year; provided that (A) if the Leverage Ratio as of the end of the fiscal year ending December 31, 2008 is less than 1.25:1.00, the foregoing percentage shall be reduced to 25% with respect to such year and (B) if the relevant Reinvestment Event Leverage Ratio as of the end of any subsequent fiscal year is less than 1.00 to 1.00, the foregoing percentage shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, reduced to 25% with respect to such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000subsequent year.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Credit Agreement (Servicesource International LLC), Credit Agreement (Servicesource International LLC)
Mandatory Prepayments. There shall become due and payable and Borrower shall prepay the Term Loan (aand the Revolving Loans and Swingline Loans, to the extent required by Section 2.1(e)(i)) In in the event following amounts and on such occasion thatat the following times:
(i) on the Exposure of date on which any Lender exceeds such Lender’s Revolving Credit Commitment; or
Party (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the or Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(bas loss payee or assignee) If receives any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesMajor Casualty Proceeds, an amount equal to one hundred percent (100% %) of such Major Casualty Proceeds; provided, that, so long as no Default or Event of Default has occurred and is continuing, the recipient (other than Administrative Agent) of any Major Casualty Proceeds may reinvest the amount of such Major Casualty Proceeds within ninety (90) days, in replacement assets comparable to the assets giving rise to such Major Casualty Proceeds; provided, that the aggregate amount which may be reinvested by Borrower and its Subsidiaries pursuant to the preceding proviso may not exceed $250,000 in any Fiscal Year; provided, further, that if the applicable Credit Party does not intend to fully reinvest such Major Casualty Proceeds, or if the time period set forth in this sentence expires without such Credit Party having reinvested such Major Casualty Proceeds, Borrower shall prepay the Loans in an amount equal to such Major Casualty Proceeds (to the extent not reinvested or intended to be reinvested within such time period);
(ii) upon receipt by any Credit Party of the proceeds from the issuance and sale of any Debt or equity securities (other than (1) proceeds of Debt securities expressly permitted pursuant to Section 5.1, (2) proceeds of the issuance of equity securities to Borrower or any Wholly-Owned Subsidiary), and (3) proceeds of the issuance of equity securities of Borrower (or a parent company of Borrower) upon the exercise of any stock option to acquire securities of Borrower, in each case in an amount equal to one hundred percent (100%) of the Net Cash Proceeds thereof of such issuance and sale;
(iii) upon receipt by any Credit Party of the proceeds of any Asset Disposition, an amount equal to one hundred percent (100%) of the Net Cash Proceeds of such Asset Disposition; provided, that no prepayment shall be required pursuant to this Section 2.1(c)(iii) unless and until the aggregate Net Cash Proceeds received during any Fiscal Year from Asset Dispositions exceeds $350,000 (in which case all Net Cash Dominion Period Proceeds in excess of such amount shall be applied on used to make prepayments pursuant to this Section 2.1(c)(iii)), and provided, that, so long as no Default or Event of Default has occurred and is continuing, the date of receipt recipient of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that may reinvest the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
within ninety (d90) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreementdays, in the case replacement fixed assets of any insurance a kind then used or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction usable in the Total Revolving business of such Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f)Party. If the precise applicable Credit Party does not intend to so reinvest such Net Cash Proceeds, or if the time period set forth in the immediately preceding sentence expires without such Credit Party having reinvested such Net Cash Proceeds, Borrower shall prepay the Loans in an amount equal to such Net Cash Proceeds; and
(iv) upon receipt by any Credit Party of insurance or condemnation proceeds allocable any Extraordinary Receipts, an amount equal to Inventory as compared one hundred percent (100%) of such Extraordinary Receipts. Any amounts permitted to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject reinvested pursuant to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, preceding clauses (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable immediately applied by Borrower as a prepayment against then outstanding Revolving Loans, and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise establish a Reserve (the Lenders of “Reinvestment Reserve”) against the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be Limit in an amount that would be equal to such permitted in reinvestment amount. So long as no Default or Event of Default then exists, Administrative Agent shall permit Revolving Loan Borrowings to finance the case making of reinvestments permitted pursuant to the preceding clauses (ii) and (iii), and shall concurrently reduce the Reinvestment Reserve by an advance of a Borrowing equivalent amount. Any remaining portion of the same Type as provided in Section 2.1. Each prepayment of a Borrowing Reinvestment Reserve shall be applied ratably reduced to zero (0) upon the expiration of the applicable reinvestment periods pursuant to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18preceding clauses (ii) and (iii).
Appears in 2 contracts
Samples: Credit Agreement (Collegiate Pacific Inc), Credit Agreement (Collegiate Pacific Inc)
Mandatory Prepayments. (a) In Subject to the event and on such occasion that:
(i) proviso below, upon the Exposure occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) Casualty Event, the Total Exposure exceeds Borrower shall make a mandatory prepayment of the lesser Term Loan in an aggregate amount equal to the sum of (x) Total Revolving Credit Commitments and one hundred percent (y100%) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during by the Borrower or any other Obligor as a result of such Casualty Event, and (y) any accrued but unpaid interest on such principal amount of the Term Loan being prepaid; provided that so long as no Default or Event of Default has occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Dominion Period shall be applied on Proceeds, if, within five (5) Business Days following the date occurrence of receipt any such Casualty Event, a Responsible Officer of the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of purchase or construction of other assets useful in the business of the Borrower or its Subsidiaries, then such Net Cash Proceeds as set forth of such Casualty Event may be applied for such purpose in Section 2.9(d)lieu of such mandatory prepayment, provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (orprovided further that, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such that Net Cash Proceeds have not been so applied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall be applied on such date as set forth make a mandatory prepayment of the Term Loan in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to the Reinvestment Prepayment Amount with respect to sum of (A) one hundred percent (100%) of the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount unused balance of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower or any other Obligor as a result of such Casualty Event, and their respective Subsidiaries and not previously applied toward the prepayment (B) any accrued but unpaid interest on such principal amount of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (Term Loan being prepaid, provided, further, that to the extent that the property subject to the terms of the Intercreditor AgreementCasualty Event is Collateral, in the case of then any insurance such acquired, replaced, repaired, purchased or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) constructed property shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction Collateral in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by which the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during for the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation benefit of the amount of such prepaymentLenders, provided that has been granted a notice of optional prepayment may state that such notice is conditioned upon security interest under the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Security Documents.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (Icagen, Inc.), Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (a) [Intentionally Omitted]
(b) In the event that on or before the 60th day following the entry by the Bankruptcy Court of the Interim Order, the Final Order has not been entered by the Bankruptcy Court, the Borrowers shall prepay all outstanding Loan Document Obligations on such day.
(c) In the event and on each occasion that any Net Cash Proceeds are received by or on behalf of Holdings or any Subsidiary in respect of a Prepayment Event, the Borrowers shall, within five Business Days after such occasion Net Cash Proceeds are so received, prepay the outstanding Loans in an aggregate principal amount equal to the Applicable Prepayment Percentage of such Net Cash Proceeds; provided that:
(i) , in the Exposure case of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) Prepayment Event that is an Asset Sale, if the Borrowing Base; Agent shall deliver to the Borrower Administrative Agent a certificate of a Financial Officer of the Borrowing Agent, on or prior to the date that a prepayment would otherwise be required hereunder if such certificate were not delivered, to the effect that Holdings and the Subsidiaries intend to apply the Net Cash Proceeds from such Asset Sale (or a portion thereof specified in such certificate), within the Reinvestment Period applicable to such Net Cash Proceeds, to acquire real property, equipment or other tangible or intangible assets to be used in the business of Holdings and the Subsidiaries (which real property, equipment or other assets must be assets that become Collateral to the extent that such Net Cash Proceeds are attributable to assets that were Collateral), and certifying that no Default has occurred and is continuing, then no prepayment shall repay be required pursuant to this paragraph in respect of such Net Cash Proceeds (or the Revolving Credit Loans portion of such Net Cash Proceeds specified in such certificate, if applicable) except to the extent of any such excessNet Cash Proceeds that have not been so applied by the end of such Reinvestment Period, provided that if the at which time a prepayment shall be required in an aggregate principal amount of Revolving Credit Loans then outstanding is less than equal to the amount Applicable Prepayment Percentage of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during that have not been so applied. For purposes hereof, “Reinvestment Period” means, in respect of any Net Cash Dominion Period shall be applied Proceeds, the period beginning on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementand ending 180 days thereafter.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.), Superpriority Senior Secured Debtor in Possession and Exit Term Loan Credit Agreement (HMH Holdings (Delaware), Inc.)
Mandatory Prepayments. (a) In addition to any prepayment required in accordance with Section 10.2 as a result of an Event of Default hereunder, the event and on such occasion thatLoans shall be subject to mandatory prepayment as follows:
(i) If the Exposure SPAC or a Loan Party or any Subsidiary of a Loan Party shall at any Lender exceeds such Lender’s Revolving Credit Commitment; or
time or from time to time receive Net Proceeds in the aggregate amount in excess of $25,000,000 from the issuance of Equity Interests pursuant to one or more SPAC Share Purchase Agreements, then (iiA) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower Borrowers shall repay the Revolving Credit Loans to the extent promptly notify Agent of such excess, provided that if the aggregate principal amount issuance of Revolving Credit Loans then outstanding is less than Equity Interests (including the amount of the estimated Net Proceeds to be received by the SPAC or a Loan Party and/or such excess Subsidiary in respect thereof) and (because L/C Obligations constitute B) within five (5) Business Days of receipt thereof by the SPAC or a portion thereof)Loan Party and/or such Subsidiary of the Net Proceeds of such issuance, the Borrower shallBorrowers shall deliver, or cause to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesdelivered, an amount equal to 10025% of such excess Net Proceeds to Agent for distribution to the Lenders as a prepayment of the Loans.
(ii) If a Loan Party or any Subsidiary of a Loan Party shall at any time or from time to time (x) directly or indirectly, sell, transfer or otherwise dispose of any asset in a manner not permitted hereunder or (y) suffer an Event of Loss, then (A) the Borrowers shall promptly notify Agent of such proposed disposition or Event of Loss (including the amount of the estimated Net Proceeds to be received by a Loan Party and/or such Subsidiary in respect thereof) and (B) within five (5) Business Days of receipt thereof by a Loan Party and/or such Subsidiary of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such disposition or Event of Loss, the Borrowers shall deliver, or cause to be delivered, such excess Net Cash Proceeds to Agent for distribution to the Lenders as set forth in Section 2.9(d), provided, however, that a prepayment of the Loans. Notwithstanding the foregoing requirements and provided no Event of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property Default has occurred and is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofcontinuing, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice prepayment shall not be required to be applied as set forth the extent a Loan Party or such Subsidiary reinvests the Net Proceeds of such disposition or Event of Loss in Section 2.9(d) until productive assets of a kind then used or usable in the business of the Borrowers or such Subsidiary within 180 days after the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment disposition or Event of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit CommitmentsLoss; provided that during an Event the applicable Borrower notifies Agent of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance Borrower’s or condemnation proceeds allocable such Subsidiary’s intent to Inventory as compared to equipment, fixtures reinvest and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount completion of such prepaymentreinvestment at the time such proceeds are received and when such reinvestment occurs, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18respectively.
Appears in 2 contracts
Samples: Credit Agreement (Adit EdTech Acquisition Corp.), Credit Agreement (Adit EdTech Acquisition Corp.)
Mandatory Prepayments. (a) In addition to Borrowers’ obligation to pay the event entire amount of the Obligations upon the Revolving Commitment Termination Date, Borrowers shall also be jointly and on such occasion thatseverally required to prepay the Obligations as follows:
(iA) Borrowers shall prepay the Exposure Obligations (I) in the amount of any Lender exceeds such Lender’s Revolving Credit Commitment; or
the Net Asset Sale Proceeds from Asset Sales of ABL Priority Collateral (iiother than the collection of Accounts and the sale or lease of Inventory in the Ordinary Course of Business) and (II) in the Total Exposure exceeds amount of all cash proceeds from the lesser collection of Accounts or the sale or lease of Inventory in the Ordinary Course of Business. In addition, Borrowers shall prepay the Obligations in the amount of the Net Asset Sale Proceeds from Asset Sales of Notes Priority Collateral to the extent (x) Total Revolving Credit Commitments such Net Asset Sale Proceeds are not required to be applied to the Senior Secured Notes or the Second Lien Obligations pursuant to the Intercreditor Agreement, as the case may be, and (y) such prepayment is otherwise permitted by the Borrowing Base; Senior Secured Notes Indenture and the Borrower Intercreditor Agreement;
(B) Borrowers shall repay prepay the Revolving Obligations from (I) the Net Insurance/Condemnation Proceeds received by Agent or any Credit Loans Party, as applicable paid in respect of any ABL Priority Collateral and (II) all Net Insurance/Condemnation Proceeds to the extent (x) such Net Insurance/Condemnation Proceeds are not required to be applied to the Senior Secured Notes or the Second Lien Obligations pursuant to the Senior Secured Notes Indenture and the Intercreditor Agreement, as the case may be, and (y) such prepayment is otherwise permitted by the Senior Secured Notes Indenture and the Intercreditor Agreement; and
(C) On the date of such excessreceipt by any Credit Party of any Cash proceeds from the incurrence of any Indebtedness of any Credit Party (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1, provided that including, without limitation, the Senior Secured Notes, the $125,000,000 Unsecured Debt, the Second Lien Obligations, or the Subordinated Lien Obligations, if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofany), Borrowers shall prepay the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit Loans in an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an aggregate amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses that are not otherwise required to be applied on to the date of receipt of Senior Secured Notes pursuant to the Senior Secured Notes Indenture and the $125,000,000 Unsecured Debt pursuant to the $125,000,000 Unsecured Debt Credit Agreement, as such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as agreements are in effect on the date of this Agreementhereof.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.), Senior Secured Revolving Credit and Guaranty Agreement (Euramax International, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) Asset Dispositions (other than an Event of Loss). Upon the Exposure occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser Asset Disposition other than an Event of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; Loss, the Borrower shall repay prepay the Revolving Credit Loans to the extent of such excess, provided that if and the aggregate principal unpaid amount of Revolving all Letter of Credit Loans then outstanding is less than the amount of Obligations owing with respect to such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in at such time or cash in a cash collateral account established with the Administrative Agent for the benefit collateralize, at 100% of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdingsface amount thereof, the Borrower or any Letters of their respective SubsidiariesCredit, in accordance with Section 2.06(b)(vi), in an amount equal to 100% of any Net Proceeds within three Business Days of receipt thereof by the Net Cash Proceeds thereof received during Borrower or any Cash Dominion Period shall be applied on Restricted Subsidiary; provided, however, that, at the date election of the Borrower (as notified by the Borrower to the Administrative Agent within three Business Days of receipt of such Net Cash Proceeds as set forth in Section 2.9(dProceeds), provided, however, that the foregoing requirements of this paragraph (b) and so long as no Default shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdingshave occurred and be continuing, the Borrower or any Restricted Subsidiary may, within 365 days after the receipt of their respective Subsidiaries shall receive such Net Cash Proceeds from Proceeds, use any Asset Sale such proceeds (A) to invest in operating assets of the Borrower and the Restricted Subsidiaries, (B) to acquire all or Recovery Event 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 Person is or becomes a Restricted Subsidiary, (or, 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 event of damage by casualty, the date the repair or restoration Permitted Business of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, Borrower or the Restricted Subsidiaries; provided that such Net Cash Proceeds shall be applied on held in a segregated bank account designated by the Collateral Agent subject to an Account Control Agreement until such date time as set forth in Section 2.9(d); provided, that, notwithstanding they are used to prepay the foregoing, on each Reinvestment Prepayment Date, an Loans and the aggregate unpaid amount equal to the Reinvestment Prepayment 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 relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate face amount of such Net Cash Proceeds received by SuperHoldings, Holdingsthereof, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment Letters of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f2.06(b)(vi) and/or are used in accordance with this Section 2.06(b)(i). If In the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is event that any Net Proceeds are not otherwise determined, used in accordance with this Section 2.06(b)(i) by the allocation and application of those proceeds shall be determined, subject Borrower prior to the Intercreditor Agreement, by earlier of (A) the Administrative Agent, in its Permitted Discretion.
last day of such 365 day period and (eB) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepaymentthe occurrence of a Default, the Borrower shall immediately 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 on the last day of such period (iior such earlier date, as the case may be) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in accordance with Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.06(b)(vi).
Appears in 2 contracts
Samples: Credit Agreement (Vantage Drilling International), Credit Facility Agreement
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, date the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in with respect thereof, to an amount equal to 75% of such Net Cash Proceeds (“Allocated Proceeds”; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such date as set forth in Section 2.9(d); provided, that, notwithstanding proceeds are received toward the foregoingprepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall exceed $1,000,000.
in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (d) All such amounts described in Sections 2.9(bi) and (cii) (subject above, to the extent that the terms of the Intercreditor Agreementdocumentation for any First Lien Notes or Pre-Existing Debt that is secured on a pari passu basis with the Obligations under this Agreement require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes or Pre-Existing Debt pursuant to a mandatory offer to purchase such First Lien Notes or Pre-Existing Debt, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall such Allocated Proceeds may be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If 2.9(c) and purchase First Lien Notes and/or Pre-Existing Debt on a pro rata basis based on the precise amount respective amounts of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures Term Loans and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans First Lien Notes and/or Pre-Existing Debt then outstanding.
(fb) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Debt Incurrence Prepayment Event then with respect to an amount equal to 100% of such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The Borrower shall notify the Administrative Agent (and, in the case application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a Swing Line Loan, pro rata basis to each Class of Term Loans then outstanding (except to the Swing Line Lender) by telephone (confirmed by facsimile extent that any Incremental Activation Notice for any Class of Incremental Term Loans or by other electronic transmission) Extended Term Loans provide that such Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any prepayment hereunder (i) in the case of amounts required to be applied to a prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (iiTerm Loans pursuant to Section 2.9(b) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify made, at the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower Borrower’s option (by notice to the Administrative Agent Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or prior (ii) to the specified date) if such condition is not satisfiedTerm Loans of each Class selected by the Borrower. Promptly following receipt Amounts required to be applied to the prepayment of Term Loans of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Class shall be in an amount that would be permitted in the case applied first, to ABR Loans of an advance such Class and, second, to Eurodollar Loans of a Borrowing of the same Type as provided in Section 2.1such Class. Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under this Section 2.9 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 2 contracts
Samples: Credit Agreement (Cco Holdings LLC), Restatement Agreement (Cco Holdings LLC)
Mandatory Prepayments. (a) In Unless the event and on such occasion that:
Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, (i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be is incurred after the date hereof by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph its Subsidiaries (b) shall not apply to excluding any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
), 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 as set forth in Section 2.12(d) and Section 2.18(b) and (cii) If on if any Capital Stock shall be issued after the date SuperHoldings, hereof by Holdings, the Borrower or any of their respective its Subsidiaries (excluding any issuance of Capital Stock (x) the proceeds of which constitute Designated Equity Amounts or (y) issued as compensation to employees of Holdings, the Company or any of its Subsidiaries or to management of Holdings or any of its Subsidiaries in the ordinary course of business), an amount equal to 50% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b).
(b) Unless the Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, if on any date Holdings, the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof within five Business Days thereafter, 100% of such Net Cash Proceeds shall be applied on such date fifth Business Day toward the prepayment of the Term Loans as set forth in Section 2.9(d2.12(d) and Section 2.18(b); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any fiscal year of the Borrower, (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.9(d2.12(d) and Section 2.18(b) and (iii) for purposes of this Section 2.12(b); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject of any Asset Sale pursuant to a Reinvestment Notice Section 7.5(k) shall not be required equal to be applied as set forth in Section 2.9(dthe lesser of (A) until the date upon which the aggregate amount of such Net Cash Proceeds received and (B) the aggregate amount of Investments made by SuperHoldingsHoldings, the Borrower or any of their respective Subsidiaries in the relevant Foreign Subsidiary after the Effective Date and, in no event, shall the Net Cash Proceeds of all Asset Sales in respect of the Capital Stock of any Foreign Subsidiary for purposes of this Section 2.12(b) exceed the aggregate amount of Investments made by Holdings, the Borrower and their respective Subsidiaries and not previously applied in such Foreign Subsidiary after the Effective Date.
(c) Unless the Majority Facility Lenders in respect of the Term Loan Facility shall otherwise agree, if, for any fiscal year of the Borrower commencing with the fiscal year in which the Effective Date occurs, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans as set forth in Section 2.12(d) and Section 2.18(b). Each such prepayment and commitment reduction shall exceed $1,000,000be 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 of the Borrower 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.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case The application of any insurance or condemnation proceedsprepayment pursuant to this Section shall be made first to Base Rate Loans and second to Eurodollar Loans (in a manner, to the extent they arise from casualties or losses to equipmentpracticable and permitted hereunder, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without which minimizes amounts payable under Section 2.21 as a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount result of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1). Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under this Section shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Laundry Systems LLC), Credit Agreement (Alliance Laundry Systems LLC)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, date the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in with respect thereof, to an amount equal to 75% of such Net Cash Proceeds (“Allocated Proceeds”; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such date as set forth in Section 2.9(d); provided, that, notwithstanding proceeds are received toward the foregoingprepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans shall exceed $1,000,000.
in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (d) All such amounts described in Sections 2.9(bi) and (cii) (subject above, to the extent that the terms of the Intercreditor Agreementdocumentation for any First Lien Notes require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes pursuant to a mandatory offer to purchase such First Lien Notes, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall such Allocated Proceeds may be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If 2.9(c) and purchase First Lien Notes on a pro rata basis based on the precise amount respective amounts of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures Term Loans and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans First Lien Notes then outstanding.
(fb) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Debt Incurrence Prepayment Event then with respect to an amount equal to 100% of such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The Borrower shall notify the Administrative Agent (and, in the case application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a Swing Line Loan, pro rata basis to each Class of Term Loans then outstanding (except to the Swing Line Lender) by telephone (confirmed by facsimile extent that any Incremental Activation Notice for any Class of Incremental Term Loans or by other electronic transmission) Extended Term Loans provide that such Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any prepayment hereunder (i) in the case of amounts required to be applied to a prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (iiTerm Loans pursuant to Section 2.9(b) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify made, at the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower Borrower's option (by notice to the Administrative Agent Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or prior (ii) to the specified dateTerm Loans of each Class in direct order of maturity (based on the respective Term Maturity Dates for such Classes) and, if more than one Class of Term Loans has the same Term Maturity Date, on a pro rata basis between such condition is not satisfiedClasses of Term Loans based on the respective principal amount of such Classes of Term Loans then outstanding. Promptly following receipt Amounts required to be applied to the prepayment of Term Loans of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Class shall be in an amount that would be permitted in the case applied first, to ABR Loans of an advance such Class and, second, to Eurodollar Loans of a Borrowing of the same Type as provided in Section 2.1such Class. Each prepayment of a Borrowing shall be applied ratably to the Term Loans included in the prepaid Borrowing. Prepayments under this Section 2.9 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 2 contracts
Samples: Credit Agreement (Charter Communications, Inc. /Mo/), Credit Agreement (Charter Communications, Inc. /Mo/)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, date the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in with respect thereof, to an amount equal to 75% of such Net Cash Proceeds (“Allocated Proceeds”; provided that the Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds equal to the first 75% of the Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied on the fifth Business Day after the date such date as set forth in Section 2.9(d); provided, that, notwithstanding proceeds are received toward the foregoingprepayment of the Term Loans or (ii) if such Allocated Proceeds are Reinvestment Proceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000Term Loans.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(eb) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) application of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice pursuant to this Section 2.9 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under this Section 2.9 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 2 contracts
Samples: Credit Agreement (Charter Communications Inc /Mo/), Credit Agreement (Charter Communications Inc /Mo/)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of When any Lender exceeds such Lender’s Revolving Credit Commitment; or
Parent Holdco or any Subsidiary thereof makes any Asset Disposition (iiother than dispositions permitted under Sections 4.3(a), 4.3(d), 4.3(e), 4.3(f), 4.3(h) the Total Exposure exceeds the lesser of (xor 4.3(i)) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower or experiences any Asset Loss Event, U.S. Borrowers shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount Advances in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall thereof, such repayments to be applied on the date of made promptly but in no event more than five (5) Business Days following receipt of such Net Cash Proceeds as set forth in Section 2.9(d)Proceeds, provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on and until the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofpayment, such Net Cash Proceeds shall be applied on such date as set forth held in Section 2.9(d)trust for Agent; provided, thathowever, notwithstanding up to an aggregate of $1,000,000 per Fiscal Year (or such higher amount as Agent and the foregoing, on each Reinvestment Prepayment Date, an amount equal to Required Lenders may agree) of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice of the foregoing shall not be required to be applied to the prepayment of the Advances to the extent such proceeds are to be used to replace, repair or restore, or otherwise reinvest in, assets used in any Borrower’s business and so long as: (A) no Default or Event of Default has occurred and is continuing on the date such Person receives such Net Cash Proceeds, (B) U.S. Borrowing Agent delivers a certificate to Agent within three (3) Business Days after such Asset Disposition or ten (10) Business Days after the occurrence of Asset Loss Event (as applicable), stating that such Net Cash Proceeds shall be used to replace, repair or restore, or otherwise reinvest in, any such properties or assets to be used in Borrowers’ or its Subsidiaries’ business, as the case may be, within a period specified in such certificate not to exceed 270 days after the receipt of such proceeds (which certificate shall set forth estimates of the proceeds to be so expended and shall set forth in Section 2.9(dreasonable detail the plans for such reinvestment, replacement, repair or restoration, which shall be acceptable to Agent in its Permitted Discretion) until and (C) such Net Cash Proceeds are deposited in a non-interest bearing account subject to the date sole dominion and control of Agent (which proceeds shall then be disbursed by Agent to the applicable U.S. Borrower or Subsidiary thereof promptly upon which U.S. Borrowing Agent’s written request therefor setting forth in reasonable detail the aggregate amount use of such proceeds and certifying that such proceeds are being applied in the manner set forth in the certificate delivered to Agent in accordance with clause (B)); provided, further, that (x) if all or any portion of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously so applied toward to the prepayment of the Loans Advances are not used in accordance with the foregoing proviso within 270 of receipt of such Net Cash Proceeds, such amount shall exceed $1,000,000.
be applied to the Advances as otherwise set forth herein, on the last day of such specified period, (dy) All if such amounts described U.S. Borrower or Subsidiary, as the case may be, is not permitted to reinvest or utilize such Net Cash Proceeds in Sections 2.9(baccordance with this Section 2.21(c)(i) as a result of the existence of a Default, U.S. Borrowing Agent may request, and (c) (upon the written approval of Agent, such Net Cash Proceeds shall be deposited in a non-interest bearing account subject to the sole dominion and control of Agent until the earlier of (I) the date on which such Default is cured or waived in writing in accordance with the terms of the Intercreditor this Agreement, in which case such amounts may be reinvested or utilized in accordance with the proviso above and (II) the date on which an Event of Default shall occur, in which case such Net Cash Proceeds shall be applied to the Advances in accordance with Section 11.5 on such date and (z) if such U.S. Borrower or such Subsidiary, as the case may be, is not permitted to reinvest or utilize such net cash proceeds as a result of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an continuing Event of Default, all such amounts net cash proceeds shall be applied in accordance with Section 2.15(f)11.5. If The foregoing shall not be deemed to be implied consent to any Disposition or other event otherwise prohibited by the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures terms and real property is not otherwise determined, the allocation and application of those proceeds conditions hereof. Such repayments shall be determinedapplied (i) first, to the outstanding principal installments of the Term Loan in the inverse order of the maturities thereof, and (ii) second, (A) to the extent such Asset Loss Event related to the U.S. Borrowers, to the remaining U.S. Advances in such order as Agent may determine, subject to the Intercreditor AgreementU.S. Borrowers’ ability to reborrow U.S. Revolving Advances in accordance with the terms hereof and (B) to the extent such Asset Loss Event related to the Canadian Borrowers, by to the Administrative Agentremaining Canadian Advances in such order as Agent may determine, subject to the Canadian Borrowers’ ability to reborrow Canadian Revolving Advances in its Permitted Discretionaccordance with the terms hereof.
(eii) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding[Reserved].
(fiii) The Borrower [Reserved].
(iv) When any Parent Holdco or any Subsidiary thereof receives any Extraordinary Receipts, U.S. Borrowers shall notify repay the Administrative Agent Advances in an amount equal to 100% of the Net Cash Proceeds thereof, such repayment to be made promptly but in no event more than five (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender5) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereofNet Cash Proceeds. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing Such repayments shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest first, to the extent required by Section 2.18any such amounts constitute reimbursement of amounts previously paid using proceeds of Revolving Advances or working capital, to the outstanding Revolving Advances (without a corresponding reduction to the Maximum Revolving Advance Amount) and second, to the extent of any remaining Net Cash Proceeds thereof, 75% to the outstanding Revolving Advances (without a corresponding reduction to the Maximum Revolving Advance Amount) and 25% to the Term Loan. The foregoing shall not be deemed to be implied consent to any event or condition giving rise to any Extraordinary Receipts which would otherwise constitute a Default or Event of Default under this Agreement.
Appears in 2 contracts
Samples: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.), Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness Capital Stock shall be incurred issued by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Restricted Subsidiaries (other than in the case of any Restricted Subsidiary, an amount issuance to the Borrower or any other Restricted Subsidiary), (i) if the Borrower’s Consolidated Senior Leverage ratio is equal to or greater than 1.50 to 1.00 on the date of such issuance, 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period of such issuance shall be applied on the date of receipt such issuance to the prepayment of such Net Cash Proceeds as set forth in Section 2.9(d)the Loans, provided, however, that and (ii) if the foregoing requirements of this paragraph (b) shall not apply Borrower’s Consolidated Senior Leverage Ratio is less than 1.50 to any Indebtedness incurred in accordance with Section 7.2 as in effect 1.00 on the date of this Agreementsuch issuance, 50% of the Net Cash Proceeds of such issuance shall be applied on the date of such issuance to the prepayment of the Loans.
(cb) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Restricted Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofwithin 180 days of such date of receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied at the Borrower’s option to any one or more of the following: (i) the prepayment of the Loans, or (ii) to purchase assets or property constituting Collateral. The provisions of this Section 2.06(b) do not constitute a consent to an Asset Sale not otherwise permitted under this Agreement.
(c) In the event that any Loan Party shall receive Net Cash Proceeds from the issuance, incurrence or placement of Indebtedness of any Loan Party, the Borrower shall on such date as set forth in Section 2.9(d); provideddate, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount 100% of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000to prepay outstanding Loans.
(d) All such amounts described in Sections 2.9(b) and (c) (subject prepayments of Loans made pursuant to the terms this Section 2.06 shall be accompanied by payment of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures Applicable Prepayment Premium and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all accrued interest on such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted DiscretionLoans.
(e) The Borrower agrees Prior to the date that during is 181 days after the period from September 1 through December 31 Closing Date, each Lender shall have ten days to accept or reject its pro rata share of each calendar year there any mandatory prepayments described in this Section 2.06. In the event any Lender does not accept its pro rata share within such ten day period, the amounts so rejected shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower offered to each non-rejecting Lender thereunder. Any mandatory prepayments remaining after being reoffered to such non-rejecting Lenders shall notify be returned by the Administrative Agent (andto the Borrower and used for general working capital purposes, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation including voluntary prepayments of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Credit Agreement (Rotech Healthcare Inc), Credit Agreement (Rotech Healthcare Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) If the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding the Notes is less than accelerated (including, but not limited to, upon the amount occurrence of such excess a bankruptcy or insolvency event (because L/C Obligations constitute a portion thereofincluding the acceleration of claims by operation of law)), the Borrower shallIssuer shall immediately pay to Purchasers, payable to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount each Purchaser in cash in a cash collateral account established accordance with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their its respective SubsidiariesPro Rata Share, an amount equal to 100% the sum of: (i) the outstanding principal amount of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on Notes, plus (ii) accrued and unpaid interest thereon through the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d)prepayment date, providedplus (iii) all other Obligations that are due and payable, howeverincluding Purchasers’ Expenses and interest at the Default Rate, that the foregoing requirements of this paragraph (b) shall not apply if applicable, with respect to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementpast due amounts.
(cii) If on any date SuperHoldings, Holdings, the Borrower Issuer or any of their respective Subsidiaries Subsidiary shall receive Net Cash Proceeds from any Asset Sale or Recovery Event Sale, Issuer shall apply an amount equal to one hundred percent (or100%) of such Net Proceeds, in to prepay the event of damage by casualty, the date the repair or restoration of the relevant Property is completedNotes; provided that,
(1) and a Cash Dominion Period then exists, then, unless Issuer may deliver a Reinvestment Notice shall be delivered in with respect thereof, to the percentage of such Net Cash Proceeds in the Issuer Retention column below, and shall be applied on apply an amount equal to the percentage of such date as set forth Net Proceeds in Section 2.9(d); providedthe Note Repayment column below, that, to prepay the Notes: First $10.0 25.0 % 75.0 % Next $10.0 35.0 % 65.0 % Next $10.0 45.0 % 45.0 % Any remaining proceeds thereafter 50.0 % 50.0 % and
(2) notwithstanding the foregoing, on each Reinvestment Prepayment Date, Issuer shall apply an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event to prepay the Notes (together with any applicable premium). All Net Proceeds from Asset Sales shall be applied as set forth deposited in a Collateral Account pending repayment or reinvestment in accordance with the terms of this Section 2.9(d2.2(c); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required . Amounts to be applied as set forth in connection with prepayments made pursuant to this Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property2.2(c)(ii) shall be applied, first payable to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction each Purchaser in the Total Revolving Credit Commitmentsaccordance with its respective Pro Rata Share; provided that during an Event of Default, all any Purchaser may decline any such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determinedprepayment (collectively, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event“Declined Amount”), in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Declined Amount shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1retained by Issuer. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments Notes under this Section 2.2(c)(ii) shall be accompanied by accrued interest to the extent required by date of such prepayment on the amount prepaid. Issuer shall deliver to each Purchaser notice of each prepayment of Notes in whole or in part pursuant to this Section 2.182.2(c)(ii) not less than five (5) Business Days 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 prepayment, and (iii) the option of each Purchaser to (x) decline its share of such prepayment or (y) accept Declined Amounts. Any Purchaser that wishes to exercise its option to decline such prepayment or to accept Declined Amounts shall notify Issuer not later than three (3) Business Days prior to the Mandatory Prepayment Date. Issuer shall not, and shall not permit any of the Subsidiaries to, use any Net Proceeds received from any Asset Sale to repay any Junior Indebtedness.
Appears in 2 contracts
Samples: Note Purchase Agreement (5E Advanced Materials, Inc.), Note Purchase Agreement (5E Advanced Materials, Inc.)
Mandatory Prepayments. (a) In The Borrower shall make a prepayment of the event and Loans, on such occasion thatthe relevant Mandatory Prepayment Date, as set forth below in an amount equal to:
(i) 100% of the Exposure amount of any Lender exceeds such Lender’s Revolving Credit Commitment; or(A) Subsidiary Disposition Proceeds, (B) Subsidiary Incremental Indebtedness Proceeds and (C) Subsidiary Incremental Equity Proceeds received by the Borrower as a result of the related BV Holdings Corporate Action (in each case plus an amount equal to the Applicable Distribution Taxes);
(ii) the Total Exposure exceeds the lesser 100% of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of BV Holdings Disposition Proceeds;
(iii) 100% of the Net After-Tax Cash Proceeds received by the Borrower for the Equity Issuance by the Borrower to any Person permitted hereunder;
(iv) 100% of the Net After-Tax Cash Proceeds received by the Borrower for the Debt Incurrence by the Borrower to any Person permitted hereunder;
(v) 100% of an amount equal to the Net After-Tax Cash Proceeds (A) in excess of $200,000,000 in the aggregate received by or Available to be received by EME from any Disposition of assets of EME or any of its Subsidiaries (or such excess Subsidiary's share of proceeds from the Disposition of an asset of a Joint Enterprise in which such Subsidiary has an interest) (because L/C Obligations constitute a portion other than assets held by (1) the Borrower or any of its Subsidiaries (or related assets thereof), (2) any Primary Guarantor or any of its Subsidiaries (or related assets thereof) or (3) any Secondary Guarantor or any of its Subsidiaries (or related assets thereof), the Borrower shallSecondary Guarantee of which was released during the occurrence and continuation of a Default (other than an Affirmative Covenant Default)), (B) received by or Available to be received by EME from any Disposition of (1) any Primary Guarantor or any of its Subsidiaries (or related assets thereof) or (2) any Secondary Guarantor or any of its Subsidiaries (or related assets thereof), the Secondary Guarantee of which was released during the occurrence and continuation of a Default (other than an Affirmative Covenant Default) and (C) except as provided in Section 7.5, received by Mission Energy Wales from any Disposition of Mission Hydro Partnership or its Subsidiaries (or related assets thereof);
(vi) 100% of an amount equal to the extent Net After-Tax Cash Proceeds of any Disposition of the balance EcoEléctrica/Del Cielo Note received by EME or any of its Subsidiaries;
(vii) 100% of an amount equal to the amount received by the Shareholder Guarantor directly or indirectly in respect of a Disposition with respect to which the Borrower receives Subsidiary Disposition Proceeds;
(viii) 100% of an amount equal to the Net After-Tax Cash Proceeds received by or Available to be received by EME from (A) the issuance or incurrence of Incremental Indebtedness by EME or (B) the issuance or incurrence of Incremental Indebtedness by any of EME's Subsidiaries (other than BV or any of its Subsidiaries); and
(ix) 100% of an amount equal to the Net After-Tax Cash Proceeds received by or Available to be received by EME for equity issuances by EME or any of its Subsidiaries (other than BV or any of its Subsidiaries) to any Person (in the case of any such Subsidiary, other than EME or a wholly-owned Subsidiary of EME); provided, that the foregoing shall not apply to Subsidiary Disposition Proceeds and BV Holdings Disposition Proceeds received by the Borrower which after taking into account the amount of Applicable Distribution Taxes and the amount of Subsidiary Disposition Proceeds not distributed to the Borrower as contemplated below would equal up to $50,000,000 in the aggregate. Mandatory prepayments pursuant to clauses (i) through (iv) above shall be made on or prior to the date two Business Days after receipt by the Borrower of the amount to be prepaid and mandatory prepayments pursuant to clause (v) through (ix) above shall be made on or prior to the date three Business Days after occurrence of the related mandatory prepayment event (any such day, a "Mandatory Prepayment Date"). For the purposes of clauses (a)(i)(B), (a)(iv) and (a)(viii) of this Section 3.1.2, an exchange offer by any Person pursuant to which Indebtedness of such excess, replace outstanding Letters Person will be exchanged for Indebtedness of Credit and/or deposit an amount another Person shall be deemed to result in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory proceeds equal to the Administrative Agentprincipal amount of such exchange.
(b) If The Borrower shall make a prepayment of the full amount of the outstanding Loans at any Indebtedness shall be incurred by SuperHoldings, Holdings, time (i) the Borrower does not directly own 99.99% of all of the ownership interests in BV or any of their respective Subsidiaries, an amount equal to (ii) EME does not directly own 100% of all of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, ownership interests in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000Borrower.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Credit Agreement (Edison Mission Energy), Credit Agreement (Edison Mission Energy)
Mandatory Prepayments. (ai) In the event and on such each occasion that:
of a Prepayment Event listed in clause (ia) of the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion definition thereof), the Borrower shall, within five Business Days after the Net Cash Proceeds in respect thereof are received by the respective Obligor, prepay Term Loans in an aggregate amount equal to the extent 33.33% of the balance amount of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative AgentNet Cash Proceeds.
(ii) In the event and on each occasion of a Prepayment Event listed in clause (b) If any Indebtedness shall be incurred by SuperHoldings, Holdingsof the definition thereof, the Borrower or any of their shall, within five Business Days after the Net Cash Proceeds in respect thereof are received by the respective SubsidiariesObligor, prepay Term Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds, provided that, in the case of any event described in clause (b)(ii) of the definition of Prepayment Event, if the Obligor applies the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of from such event (or a portion thereof) (i) within 90 days after receipt of such Net Cash Proceeds as set forth and (ii) at a time when no Event of Default has occurred and is continuing, to acquire assets to be used or useful in Section 2.9(d)the business of such Obligor, provided, however, that the foregoing requirements of then no prepayment shall be required pursuant to this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on respect of the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, of such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding event (or 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount portion of such Net Cash Proceeds received specified in such certificate, if applicable) except to the extent of any such Net Cash Proceeds therefrom that have not been so applied by SuperHoldingsthe end of such 90 day period, Holdingsas applicable, at which time a prepayment shall be required in an amount equal to such Net Cash Proceeds that have not been so applied.
(iii) In the event and on each occasion of a Prepayment Event listed in clause (c) of the definition thereof, the Borrower and their shall, within five Business Days after the Net Cash Proceeds in respect thereof are received by the respective Subsidiaries and not previously applied toward the prepayment Obligor, prepay Term Loans in an aggregate amount equal to 100% of the Loans amount of such proceeds, provided that, if the respective Obligor applies the proceeds from such event (or a portion thereof) (i) within 180 days after receipt of such proceeds and (ii) at a time when no Event of Default has occurred and is continuing, to repair, restore or replace the property or asset which gave rise to the Prepayment Event, then no prepayment shall exceed $1,000,000be required pursuant to this paragraph in respect of the proceeds in respect of such event (or the portion of such proceeds specified in such certificate, if applicable) except to the extent of any such proceeds therefrom that have not been so applied by the end of such 180 day period, as applicable, at which time a prepayment shall be required in an amount equal to such proceeds that have not been so applied.
(iv) In the event and on each occasion of a Prepayment Event listed in clause (d) All of the definition thereof, the Borrower shall, within five Business Days after the payments referred to therein are made, prepay Term Loans in an aggregate amount equal to 75% of the amount of payments made in such amounts described Prepayment Event.
(v) In the event and on each occasion of a Prepayment Event listed in Sections 2.9(bclause (e) and of the definition thereof, the Borrower shall, within five Business Days after the Net Cash Proceeds in respect thereof are received by the respective Obligor, prepay Term Loans in an aggregate amount equal to 100% of such Net Cash Proceeds.
(cvi) (subject Each prepayment of Term Loans pursuant to the terms foregoing provisions of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real propertythis Section 2.05(b) shall be applied, first paid to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied Lenders in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretiontheir respective Pro Rata Shares.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(fvii) The Borrower shall notify the Administrative Agent (and, in the case writing of any mandatory prepayment of a Swing Line Loan, the Swing Line LenderTerm Loans required to be made pursuant this Section 2.05(b) by telephone at least five (confirmed by facsimile or by other electronic transmission5) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before days prior to the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and shall specify the prepayment date of such pre-payment and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth provide a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the . The Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders will promptly notify each Lender of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each Borrower’s prepayment notice and of a Borrowing shall be applied ratably to such Lender’s pro rata share of the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18applicable prepayment.
Appears in 2 contracts
Samples: Credit Agreement (Igate Corp), Credit Agreement (Igate Corp)
Mandatory Prepayments. (a) In Upon the event and on such occasion that:
(i) the Exposure occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Casualty Event or Asset Sale (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans that is not otherwise permitted pursuant to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofSection 9.09), the Borrower shall, to the extent shall make a mandatory prepayment of the balance of such excess, replace outstanding Letters of Credit and/or deposit Loans in an amount in cash in a cash collateral account established with the Administrative Agent for the benefit equal to one hundred percent (100%) of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries with respect to such Casualty Event or Asset Sale, an as the case may be, with such amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied being allocated to the prepayment of principal, the payment of accrued and unpaid interest on such principal amount of the date of receipt of Loans being prepaid and the Prepayment Premium such that the full Prepayment Price applicable to such mandatory prepayment is paid with such Net Cash Proceeds Proceeds; provided that, so long as set forth in Section 2.9(d)no Event of Default has occurred and is continuing or would result therefrom, providedif, however, that within five (5) Business Days following (x) the foregoing requirements occurrence of this paragraph any such Asset Sale or (by) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date receipt of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Casualty Event, a Responsible Officer of the Borrower delivers to the Administrative Agent a notice to the effect that the Borrower or the applicable Subsidiary intends to apply the Net Cash Proceeds from such Casualty Event or Asset Sale, to repair, refurbish, restore, replace or rebuild the asset subject to such Casualty Event or Asset Sale, then such Net Cash Proceeds of such Casualty Event or Asset Sale may be applied for such purpose in lieu of such mandatory prepayment to the extent such Net Cash Proceeds of such Casualty Event or Recovery Event (orAsset Sale are actually applied for such purpose, provided, further, that, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such that Net Cash Proceeds have not been so applied within one hundred and eighty (180) days following (x) the occurrence of any such Asset Sale or (y) the receipt of Net Cash Proceeds from any Casualty Event, the Borrower shall be applied on such date as set forth make a mandatory prepayment of the Loans in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to one hundred percent (100%) of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount unused balance of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective or any of its Subsidiaries and not previously applied toward with respect to such Casualty Event or Asset Sale, as the case may be, with such amount of Net Cash Proceeds being allocated to the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determinedprincipal, the allocation payment of accrued and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, unpaid interest on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in being prepaid and the prepaid Borrowing. Prepayments shall be accompanied by accrued interest Prepayment Premium such that the full Prepayment Price applicable to the extent required by Section 2.18such mandatory prepayment is paid with such Net Cash Proceeds.
Appears in 2 contracts
Samples: Credit Agreement (ArcherDX, Inc.), Credit Agreement (ArcherDX, Inc.)
Mandatory Prepayments. (a) In If at any time after the event and on such occasion that:
(i) Closing Date any Group Member receives any Net Cash Proceeds from the Exposure Incurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Indebtedness (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less other than the amount of such excess (because L/C Obligations constitute a portion thereofExcluded Indebtedness), the Borrower shall, to shall prepay the extent of Term Loans on a pro rata basis on the balance date of such excess, replace outstanding Letters of Credit and/or deposit an amount receipt in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the such Net Cash Proceeds thereof received during Proceeds; provided, that if at the time of such prepayment such Group Member is required to prepay any Cash Dominion Period shall be applied on Other Applicable Indebtedness (to the date extent and if required by the terms of receipt the definitive documentation governing such other Indebtedness), then the Borrower may apply 100% of such Net Cash Proceeds as set forth in Section 2.9(d)to prepay the Term Loans and prepay, provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any redeem or repurchase such Other Applicable Indebtedness incurred in accordance with Section 7.2 as in effect on a pro rata basis on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d)receipt; 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 as set forth in Section 2.9(d); and provided further, that notwithstanding (A) any prepayment, redemption or repurchase of such Other Applicable Indebtedness shall be at par (or less than par), (B) the foregoing, portion of such Net Cash Proceeds which are not subject prepayment amount allocated to a Reinvestment Notice such Other Applicable Indebtedness shall not be exceed the amount required to be applied as set forth in Section 2.9(dallocated to such Other Applicable Indebtedness pursuant to the terms thereof, (C) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loans that would otherwise have been required pursuant to this Section 4.2(a) shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) be reduced accordingly and (cD) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties the holders of such Other Applicable Indebtedness decline to have such Indebtedness prepaid, redeemed or losses to equipmentrepurchased, fixtures the declined amount shall promptly (and real propertyin any event within 10 Business Days after the date of such rejection) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second applied to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionterms hereof.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 2 contracts
Samples: Credit Agreement (Advanced Drainage Systems, Inc.), Credit Agreement (Advanced Drainage Systems, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesSubsidiaries Disposes of any property or assets (other than inventory in the ordinary course of business), the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph upon receipt thereof by such Person (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required prepayments to be applied as set forth in Section 2.9(dclauses (e) until and (f) below); provided, however, that so long as no Default or Event of Default exists, (i) the date upon which Borrowers and their Subsidiaries may receive up to $10,000,000 in the aggregate amount of such Net Cash Proceeds in any Fiscal Year without making the prepayment described in this Section 5.3(a), and (ii) any Borrower or Subsidiary may reinvest all or any portion of the Net Cash Proceeds received by SuperHoldingssuch Person from any such Disposition in fixed capital or operating assets, Holdingsincluding real property (which reinvested amount shall not count against the $10,000,000 threshold set forth in clause (i) above), so long as (A) if any of the property or assets Disposed of constitute Collateral, the Borrower reinvestment must be in fixed capital or operating investments that also constitute Collateral and their respective Subsidiaries the Administrative Agent must have a perfected Lien in such assets, (B) within 180 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (C) if a definitive agreement to so reinvest has been executed within such 180-day period, then such reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not previously subject to such definitive agreement or so reinvested shall be, upon the conclusion of the applicable 180-day period, immediately applied toward to the prepayment of the Loans as set forth in this Section 5.3(a).
(b) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 9.2 (including, without limitation, Section 9.2(h))), the Borrowers shall exceed prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the receipt thereof by any Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (e) and (f) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of $1,000,000500,000 in the aggregate for any Fiscal Year, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the date of receipt thereof by such Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (e) and (f) below); provided that with respect to any Net Cash Proceeds of an Extraordinary Receipt, at the election of the Borrowers, and so long as no Event of Default shall have occurred and be continuing, such Borrower or such Subsidiary may (A) utilize any Net Cash Proceeds constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such property prior to the casualty event, or (B) reinvest all or any portion of such Net Cash Proceeds in fixed capital or operating assets, in each case of clause (A) or (B) so long as (x) within 180 days after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 5.3(c).
(d) All If for any reason the Revolving Facility Usage at any time exceed the Revolving Credit Facility at such amounts described time, the Borrowers shall immediately prepay Revolving Credit Loans and Letter of Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations (other than the Letter of Credit Borrowings) in Sections 2.9(ban aggregate amount equal to such excess (such prepayments and/or Cash Collateralization to be applied as set forth in subsection (f) below). If for any reason, the Delayed Draw Term Loan Outstandings at any time exceed the Delayed Draw Term Facility, the Borrowers shall immediately prepay Delayed Draw Term Loans in an aggregate amount equal to such excess (such prepayments to be applied to the remaining principal repayment installments thereof in inverse order of their maturities).
(e) Each prepayment of Loans pursuant to the foregoing provisions of this Section 5.3 (other than subsection (d)) or subsection (g) below shall be applied, first, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) and (c) (subject second, to the terms Revolving Credit Facility (without permanent reduction of the Intercreditor AgreementRevolving Credit Commitments) in the manner set forth in subsection (f) of this Section 5.3. Subject to Section 2.9, such prepayments shall be paid to the Lenders pro rata in accordance with Section 5.4.
(f) Prepayments of the Revolving Credit Facility made pursuant to this Section 5.3 shall be applied, first, ratably to the Letter of Credit Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining Letter of Credit Obligations; and the amount remaining, if any, after the prepayment in full of all Letter of Credit Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining Letter of Credit Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Credit Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any insurance or condemnation proceedsreductions of the Revolving Credit Commitments, in each case), second, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent they arise from casualties any applicable Term Lender or losses Delayed Draw Term Lender agrees to equipmentreceive less than its pro rata share of such prepayment) and third, fixtures and real property) to Cash Collateralize the remaining Letter of Credit Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied, first applied (without any further action by or notice to prepay or from any Protective Advances that may be outstanding, pro rata, second Borrower or any other Loan Party) to prepay reimburse the Swing Line Loans and third to prepay Issuing Lender or the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of DefaultLenders, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionapplicable.
(eg) The Borrower agrees that during Upon the period from September 1 through December 31 receipt of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loanany Cure Amount, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice Borrowers shall be irrevocable and shall specify the prepayment date and the prepay an aggregate principal amount of each Borrowing or portion thereof Loans equal to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation 100% of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent Cure Amount on or prior to the specified date) if Cure Expiration Date (such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely prepayments to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included as set forth in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18clauses (e) and (f) above).
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Group Member shall incur any Indebtedness shall be (excluding any Indebtedness incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesin accordance with Section 6.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence to the prepayment of such Net Cash Proceeds the Loans as set forth in Section 2.9(d2.6(f). If any Group Member shall issue any Capital Stock, provided, however, that an amount equal to 50% of the foregoing requirements of this paragraph (b) Net Cash Proceeds thereof shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect be applied on the date of this Agreementsuch issuance to the prepayment of the Loans as set forth in Section 2.6(f).
(cb) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event relating to Collateral subject to any Security Document (orother than (i) Collateral subject to the Junior Current Asset Security Agreement at any time when any loan, in letter of credit or commitment is outstanding under the event Revolving Loan Agreement and (ii) Collateral to which the provisions of damage by casualty, the date the repair or restoration of the relevant Property is completedSection 2.6(c) and a Cash Dominion Period then existsshall apply), then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans as set forth in Section 2.9(d)2.6(f) unless (i) a Reinvestment Notice shall be delivered in respect thereof and (ii) such Net Cash Proceeds are deposited in a collateral account subject to the control of the Collateral Agent for the benefit of the parties party to the Security Agreement until such time as they are withdrawn by the Borrower to acquire assets having a similar function to those assets which were the subject of the Reinvestment Event; 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 as set forth in Section 2.9(d); withdrawn from such collateral account and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans as set forth in Section 2.6(f).
(i) If on any date any Group Member shall exceed $1,000,000receive Net Cash Proceeds from any Recovery Event relating to the Electric Arc Furnace, then (A) if such Recovery Event is not the result of an Event of Loss, such Group Member shall apply such Net Cash Proceeds to restore, rebuild or replace the affected portion of the Electric Arc Furnace or (B) if such Recovery Event is the result of an Event of Loss, then such Net Cash Proceeds shall be applied on such date to the prepayment of the Loans as set forth in Section 2.6(f).
(ii) If the amount required to restore, rebuild or replace the affected portion of the Electric Arc Furnace in accordance with clause (A) of paragraph (c)(i) above is less than the amount of the related Recovery Event Net Cash Proceeds, then on the date the restoration, repair or replacement of the affected portion of the Electric Arc Furnace is deemed complete by the Administrative Agent, such excess Net Cash Proceeds shall be applied to the prepayment of the Loans as set forth in Section 2.6(f) unless a Reinvestment Notice shall be delivered in respect thereof; provided, that, if a Reinvestment Notice shall be delivered with respect to such excess Net Cash Proceeds, then on the date which is six months after the date of delivery of such Reinvestment Notice the amount of the excess Net Cash Proceeds not expended to acquire assets useful in the Borrower's business shall be applied to the prepayment of the Loans as set forth in Section 2.6(f).
(d) All If, for any fiscal quarter of the Borrower commencing with the fiscal quarter ending March 31, 2004, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such amounts described Excess Cash Flow toward the prepayment of the Loans as set forth in Sections 2.9(bSection 2.6(f). Notwithstanding the preceding sentence, in no event shall the Borrower be permitted to retain more than $20,000,000 in Excess Cash Flow generated during any period of four consecutive fiscal quarters (any such excess to be applied on the Excess Cash Flow Application Date to the prepayment of the Loans as set forth in Section 2.6(f)). Each such required prepayment shall be made on a date (an "Excess Cash Flow Application Date") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 5.1 for the fiscal quarter with respect to which such prepayment is made are required to be delivered to the Lenders and (cii) the date such financial statements are actually delivered.
(subject e) If on any date any Group Member shall receive any payment of liquidated damages or a similar amount however designated or an amount in lieu thereof or otherwise in settlement of any claim or dispute under any Principal EAF Construction Contract (other than a payment resulting from delays in completion received while no Event of Default has occurred and is continuing) in excess of $1,000,000 (collectively, "Liquidated Damages"), then on such date the Group Member shall apply such Liquidated Damages to the terms prepayment of the Intercreditor AgreementLoans in accordance with Section 2.6(f) unless (i) such Group Member requests that the Administrative Agent permit it to apply such Liquidated Damages to repair or restore the equipment to which such Liquidated Damages relates such that it will perform in an acceptable manner or to reimburse any Group Member for so doing, in (ii) the case of any insurance or condemnation proceeds, Independent Technical Consultant certifies to the extent they arise from casualties Administrative Agent and the Lenders that (x) it is technically feasible to repair or losses restore such equipment such that it will perform in an acceptable manner and (y) the amount of the applicable Liquidated Damages together with other committed funds available to equipment, fixtures the Borrower for such purpose are sufficient to repair or restore such equipment such that it will perform in an acceptable manner and real property(iii) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an no Event of Default, all such amounts Default has occurred and is continuing.
(f) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied in accordance with Section 2.15(f2.12(a). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice pursuant to Section 2.6 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under Section 2.6 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Term Loan Agreement (Wheeling Pittsburgh Corp /De/)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdingsdate TWTC, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Subsidiary shall receive Net Cash Proceeds in excess of $50,000,000 from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof within thirty (30) days after the receipt of such Net Cash Proceeds, such Net Cash Proceeds shall be applied on applied, pursuant to Section 2.12(b), toward the prepayment of the Term Loan B Loans of each Term Loan B Lender that accepts an offer of such date prepayment as set forth in Section 2.9(d2.12(b); provided. If a Reinvestment Notice has been delivered with respect to a Reinvestment Event, that, notwithstanding then on the foregoing, on each relevant Reinvestment Prepayment Date, Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant such Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loan B Loans of each Term Loan B Lender that accepts an offer of such prepayment as set forth in Section 2.12(b). Any prepayments of the Term Loan B Loans of each Term Loan B Lender that accepts an offer of such prepayment shall exceed $1,000,000be made prior to the time when the Borrower is required to make an “Offer to Purchase” (as defined in each of the 2018 Senior Note Indenture and the 2022 Senior Note Indenture) pursuant to Section 4.11(c) of the 2018 Senior Note Indenture or the 2022 Senior Note Indenture, respectively, or any equivalent provision of any other Indenture or any Indebtedness of TWTC permitted under Section 7.2(s).
(db) All such amounts With respect to the amount of any mandatory prepayment described in Sections 2.9(bSection 2.12(a) (such amount, the “Term Loan B Prepayment Amount”), the Borrower will, on the date specified in Section 2.12(a) for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan B Lender a notice (each, a “Prepayment Option Notice”). As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan B Lender a Prepayment Option Notice, which shall be in the form of Exhibit I-1, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loan B Loans of such Term Loan B Lender by an amount equal to the portion of the Term Loan B Prepayment Amount indicated in such Term Loan B Lender’s Prepayment Option Notice as being applicable to such Term Loan B Lender’s Term Loan B Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the Administrative Agent for the account of the relevant Term Loan B Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loan B Loans in respect of which such Term Loan B Lenders have accepted prepayment as described above and the Borrower shall be entitled to retain the remaining portion of the Term Loan B Prepayment Amount not accepted by the relevant Term Loan B Lenders.
(c) (subject Amounts to be applied in connection with prepayments made as so accepted by the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, Term Loan B Lenders pursuant to the extent they arise from casualties or losses to equipment, fixtures and real propertySection 2.12(b) shall be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line prepayment of the Term Loan B Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f2.18(c). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice pursuant to Section 2.12 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Term Loan B Loans included in the prepaid Borrowing. Prepayments under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(d) Notwithstanding the foregoing, if any Permitted Notes have been issued as First Lien Debt, then the Borrower may, to the extent required pursuant to the Permitted Notes Documents, prepay Term Loan B Loans and purchase such Permitted Notes (at a purchase price no greater than par plus accrued and unpaid interest) on a pro rata basis in accordance with the respective outstanding principal amounts of the Term Loan B Loans and such Permitted Notes as of the time of the applicable Asset Sale or Recovery Event.
(e) If, during the first six (6) months following the Closing Date, any of the following occurs (any such event, a “Repricing Transaction”):
(i) any prepayment or repayment of the Term Loan B Loans borrowed on the Closing Date with the proceeds of, or any conversion of Term Loan B Loans borrowed on the Closing Date into, any new or replacement Indebtedness bearing interest with an “effective yield” that is less than the “effective yield” applicable to all or a portion of the Term Loan B Loans borrowed on the Closing Date subject to such prepayment or repayment (as such comparative “effective yields” are determined by the Administrative Agent, but, in each case, (A) including the effect of upfront fees, interest rate spreads, interest rate benchmark floors and original issue discount with respect to the Term Loan B Loans subject to such Repricing Transaction and such new or replacement Indebtedness and (B) excluding the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of the Terms Loan B Loans subject to such Repricing Transaction and all the lenders or holders of such new or replacement Indebtedness, as the case may be); or
(ii) any amendment to this Agreement which reduces the “effective yield” (as determined in accordance with clause (i) above) applicable to all or a portion of the Term Loan B Loans borrowed on the Closing Date; then the Borrower will pay a premium (a “Call Premium”), for the ratable account of each Term Loan B Lender whose Term Loan B Loans are subject to such Repricing Transaction, in an amount equal to one percent (1.0%) of the aggregate principal amount of the Term Loan B Loans subject to such Repricing Transaction (it being understood that any such Call Premium with respect to a Repricing Transaction under clause (ii) above shall be paid to each Non-Consenting Lender that is replaced in such Repricing Transaction pursuant to Section 2.182.23(c)); provided that no Call Premium shall be paid in connection with any Repricing Transaction resulting from a repayment of the Term Loan B Loans borrowed on the Closing Date in connection with a refinancing, repayment or prepayment with proceeds of any issuance of Indebtedness that is also used to concurrently finance a Material Acquisition or Term Loan B Change of Control. Such Call Premium shall be due and payable within three (3) Business Days of the date of the effectiveness of such Repricing Transaction.
Appears in 1 contract
Samples: Credit Agreement (Tw Telecom Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Restricted Subsidiaries (excluding any Indebtedness permitted by Section 7.2 (other than Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on within one Business Day of the date of receipt such issuance or incurrence toward the prepayment of such Net Cash Proceeds the Term Loans as set forth in Section 2.9(d2.11(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(ca) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Restricted Subsidiaries shall receive have received Net Cash Proceeds of at least $15,000,000 in any fiscal year from any Asset Sale Sales or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, Events then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on within one Business Day of such date toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(d); provided, that, 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 Term Loans as set forth in Section 2.9(d2.11(d); and provided further.
(b) If on any date the Total Revolving Extensions of Credit exceed the Total Revolving Commitments, that notwithstanding the foregoingBorrower shall prepay Revolving Loans (or to the extent no Revolving Loans are outstanding, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as cash collateralize outstanding Letters of Credit in accordance with the procedures set forth in Section 2.9(d) until the date upon which the 8) in an aggregate amount of equal to such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000excess.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms Partial prepayments of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, Term Loans pursuant to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts Section 2.11 shall be applied in accordance with Section 2.15(f2.17(b) first, to the next eight installments thereof scheduled to be paid in direct order, and second, to the remaining installments on a pro rata basis (other than the repayment to be made on the Maturity Date). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice pursuant to Section 2.11 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under Section 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(d) Notwithstanding any other provisions of Section 2.11, to the extent any or all of the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary or the Net Cash Proceeds of any Recovery Event received by a Foreign Subsidiary are prohibited or delayed by any applicable local law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary or if the Borrower has determined in good faith that repatriation of any such amount to the Borrower or any applicable Domestic Subsidiary would have material adverse tax consequences (including a material acceleration of the point in time when such earnings would otherwise be taxed) with respect to such amount, the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay the Term Loans at the times provided in this Section 2.11 but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Borrower believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law or the Borrower determines in good faith such repatriation would no longer have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the Term Loans pursuant to Section 2.182.11 (provided that no such prepayment of the Term Loans pursuant to Section 2.11 shall be required in the case of any such Net Cash Proceeds the repatriation of which the Borrower believes in good faith would result in material adverse tax consequences, if on or before the date on which such Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to a Reinvestment Notice, the Borrower applies an amount equal to the amount of such Net Cash Proceeds to such reinvestments or prepayments as if such Net Cash Proceeds had been received by the Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds had been repatriated (or, if less, the Net Cash Proceeds that would be calculated if received by such Foreign Subsidiary).
(e) Notwithstanding anything to the contrary contained in this Section 2.11, if any Term Lender shall notify the Administrative Agent (i) on the date of such prepayment, with respect to any prepayment under Section 2.11(a) or (b) or (ii) at least one Business Day prior to the date of a prepayment under Section 2.11(c) that it wishes to decline its share of such prepayment, such share (the “Declined Prepayment Amount”) may be retained by the Borrower.
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) If at any time Borrowing Availability is less than $7,500,000, Borrower shall immediately repay the Exposure of any Lender exceeds such Lender’s aggregate outstanding Revolving Credit Commitment; orAdvances 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 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 proceeds of any cash asset disposition (excluding proceeds of asset dispositions permitted by SECTION 6.8(a)) to the Total Exposure exceeds extent the lesser net proceeds of such asset dispositions exceed $250,000 in the aggregate in any Fiscal Year, Borrower shall prepay the Obligations 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 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 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 the net proceeds of any asset disposition within 270 days thereafter in fixed assets and Borrower promptly notifies Agent of that intention in writing, and if (x) Total Revolving Credit Commitments no Event of Default shall have occurred and be continuing at the date of such written notification, and (y) Borrower or such Secured Guarantor, as the Borrowing Basecase 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; the Borrower shall repay the Revolving Credit Loans PROVIDED, further that if and to the extent that Borrower or such Secured Guarantor, as the case may be, does not reinvest such net proceeds within that 270-day period, Borrower shall then repay the Loans with net proceeds that have not been reinvested on the last day of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of 270-day period. Any such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(fSECTION 1.3(c). .
(iii) If Borrower or any Secured Guarantor shall suffer any Event of Loss, then such Person shall (A) promptly notify the precise 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 proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, or taking but subject to the Intercreditor Agreement, by the Administrative Agent, 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 its Permitted Discretionaccordance with SECTION 1.3(d).
(eiv) The Borrower agrees that during Proceeds of Keyman Life Insurance pledged to the period from September 1 through December 31 of each calendar year there Agent shall be a period of at least 30 consecutive days during immediately used to prepay the Obligations in an amount equal to such proceeds, which there are no Loans outstandingshall be applied in accordance with SECTION 1.3(c).
(fv) The If Holdings or Borrower shall notify the Administrative Agent (andissues Stock, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not no later than 10:00 A.M., New York City time, three the Business Days before Day following the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (cash proceeds thereof net of underwriting discounts and commissions and other than a notice relating solely reasonable costs paid to Swing Line Loans) non-Affiliates in connection therewith, Borrower shall prepay the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be Loans in an amount that would be permitted in the case equal to 50% of an advance of a Borrowing of the same Type as provided in Section 2.1such net proceeds. Each Any such prepayment of a Borrowing shall be applied ratably to in accordance with SECTION 1.3(c). Notwithstanding the Loans included foregoing two sentences, Borrower need not prepay the Obligations in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest accordance with this SECTION 1.3(b)(v) in connection with (A) issuances of Stock of Holdings to the extent required by Section 2.18(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 1 contract
Samples: Credit Agreement (Roller Bearing Co of America Inc)
Mandatory Prepayments. (a) In The following amounts shall be applied to prepay the event and on such occasion thatTerm Loans:
(i) On the Exposure date on which the Borrower or any Wholly-Owned Subsidiary shall receive cash consideration from the sale or issuance of any Lender exceeds Equity Interests in the Borrower or any Subsidiary (other than any such Lender’s Revolving Credit Commitmentsale or issuance in connection with the exercise of options by employees, directors and consultants for cash consideration of up to $3,000,000 in any fiscal year), 50% of the net cash proceeds thereof; orprovided that the foregoing percentage shall be reduced to (i) 25% if, on a pro forma basis after giving effect to such sale or issuance, the Leverage Ratio on the date of such sale or issuance is not greater than 1.0 to 1.0 and (ii) 0% if such Leverage Ratio is not greater than 0.5 to 1.0.
(ii) On the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If date any Indebtedness shall be issued or incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesWholly-Owned Subsidiary (excluding any Indebtedness incurred in accordance with Section 7.01), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementnet cash proceeds thereof.
(ciii) If on any On the date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Wholly-Owned Subsidiary shall receive Net Cash Proceeds cash consideration from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d)100% of the net cash proceeds thereof; provided, that, notwithstanding the foregoing, (i) the aggregate net cash proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,250,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000Term Loans.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 1 contract
Samples: Credit Agreement (Jupitermedia Corp)
Mandatory Prepayments. (a) In If at any time the event aggregate outstanding principal amount of the Loans exceeds the Total Commitment less the amount of the Interest Reserve, then the Borrower shall immediately pay the amount of such excess to the Agent for the respective accounts of the Banks for application to the Loans. The Borrower acknowledges and agrees that on such occasion that:December 31, 2000 the amount of the Total Commitment shall be reduced to $10,000,000.00 and that the Borrower shall be required to immediately pay to the Agent, for the account of the Banks, the amount by which the Outstanding principal balance of the Loans exceeds $10,000,000.00.
(b) All of the Borrower's interest in the gross proceeds of (i) the Exposure any repayment or prepayment of any Lender exceeds such Lender’s Revolving Credit Commitment; or
a principal portion of a note receivable and (ii) each and every sale or refinancing of or other capital event with respect to any asset of the Total Exposure exceeds Borrower (including a casualty or condemnation or return of capital with respect to real estate assets of the lesser Borrower and its Subsidiaries whether held directly or indirectly), less all reasonable costs, expenses and commissions paid to unrelated parties and less any Indebtedness (other than the Obligations) secured by such asset to be satisfied as a part of (x) Total Revolving Credit Commitments such sale or refinance and any Indebtedness required to be paid to Price pursuant to the terms of the Price Loan Documents and excluding any real property received in connection with a like-kind exchange and any proceeds from a sale of a pad site or out- parcel the proceeds from which are reinvested in the Person making such sale in a manner satisfactory to the Agent, and (yiii) unless otherwise waived by Agent, each and every sale, financing, or refinancing of, or transaction which results in the Borrowing Base; dilution of, the Borrower's direct or indirect ownership interest in any Person, shall be promptly paid by the Borrower shall repay to the Revolving Credit Agent for the account of the Banks as a prepayment of the Loans to the extent of such excess, provided the outstanding balance of the Loans. Borrower agrees that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, promptly upon Borrower's belief that such event may occur, provide notice to the extent Agent of the balance any proposed or contemplated (i) repayment or prepayment of such excessa principal portion of any note receivable or (ii) sale, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower refinancing or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the other capital event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided furtherany asset of Borrower. Additionally, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject Borrower agrees to a Reinvestment Notice shall not be required provide to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case Agent notice of any insurance scheduled repayment or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment principal portion of a Eurocurrency Loan, note receivable not later less than 10:00 A.M., New York City time, three Business Days before the date of prepayment, ten (ii10) in the case of prepayment of a Base Rate Loan, days but not later more than 10:00 A.M., New York City time, one Business Day before the date of prepayment or thirty (iii30) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or days prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents scheduled date thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[reserved].
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date within three (3) Business Days toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e) (or, if later, immediately upon notification by the Administrative Agent of the prepayment amount, after giving effect to any Declined Amounts determined in accordance with Section 2.12(e)); provided, that, notwithstanding the foregoing, provided that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion[reserved].
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be a period applied first to the prepayment of at least 30 consecutive days during which there are installments due in respect of the Term Loans in direct order of maturity and in accordance with Sections 2.3 and 2.18(b) and second to repay outstanding Revolving Loans and Swingline Loans in accordance with Section 2.18(c) (with no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, corresponding permanent reduction in the case Revolving Commitments); provided that any Term Lender may decline any such prepayment (the aggregate amount of prepayment of a Swing Line Loanall such prepayments declined in connection with any particular prepayment, collectively, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event“Declined Amount”), in which case such notice of prepayment may the Declined Amount shall be revoked by the Borrower (by notice distributed first, to the Administrative Agent prepayment, on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders pro rata basis, of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount Term Loans held by Term Lenders that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably have elected to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest accept such Declined Amounts; and second, to the extent required by Section 2.18.of any residual, if no Term
Appears in 1 contract
Mandatory Prepayments. Subject to the Intercreditor Agreement:
(a) In the event and on such occasion that:
Concurrently with any Asset Disposition (i) the Exposure of any Lender exceeds Collateral of any Obligor and/or any of its Subsidiaries (excluding Permitted Asset Dispositions described in any of clauses (a), (b), (c), (d), (f), (g), (h), (i), (j) or (l) of such Lender’s Revolving Credit Commitment; or
defined term) or (ii) the Total Exposure exceeds the lesser consisting of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower a Permitted Colorado Sale-Leaseback, Borrowers shall repay the Revolving Credit prepay Revolver Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to Net Proceeds of such disposition; provided that the relevant Reinvestment Event shall be applied as set forth in requirements of this Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice 5.3(a) shall not be required applicable to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of any such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment reinvested pursuant to clause (k)(i) of the Loans shall exceed $1,000,000.definition of Permitted Asset Disposition;
(db) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of Concurrently with any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount proceeds of insurance or condemnation proceeds allocable awards paid in respect of any Collateral of any Obligor and/or any of its Subsidiaries, Borrowers shall prepay Revolver Loans in an amount equal to Inventory as compared such Net Proceeds, subject to equipmentSection 8.6.2;
(c) concurrently with the receipt of any Net Proceeds of any Extraordinary Receipts by any Obligor and/or any of its Subsidiaries, fixtures and real property is not otherwise determined, the allocation and application Borrowers shall prepay Revolver Loans in an amount equal to such Net Proceeds. Any prepayment of those proceeds Revolver Loans pursuant to this Section 5.3 or any repayment of Revolver Loans pursuant to Section 2.1.5 shall be determinedapplied first, subject to all Revolver Loans (other than any FILO Loans) and thereafter to all FILO Loans. Subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 no prepayment of each calendar year there Revolver Loans pursuant to this Section 5.3 shall be cause a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, permanent reduction in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1Revolver Commitments. Each prepayment of a Borrowing shall be applied ratably to the Revolver Loans included in the prepaid Borrowing. Prepayments shall be accompanied by all interest accrued interest to the extent required by thereon and any amounts payable under Section 2.183.9.
Appears in 1 contract
Samples: Loan and Security Agreement (Hydrofarm Holdings Group, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this AgreementTerm Loans.[Reserved].
(cb) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to 75% of such Net Cash Proceeds shall be applied on within five Business Days following such date as set forth toward the prepayment of the Term Loans (or, following the payment in Section 2.9(dfull of the Term Loans, any outstanding Revolving Loans, Swingline Loans or Protective Advances); provided, that, notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed, in any fiscal year of the Borrower, an amount equal to 5% of Consolidated Total Assets as of the last day of the Borrower’s immediately preceding fiscal year, and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth toward the prepayment of the Term Loans (or, following the payment in Section 2.9(dfull of the Term Loans, any outstanding Revolving Loans, Swingline Loans or Protective Advances); and provided provided, further, that that, notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice the Borrower shall not be required to be applied as set forth prepay the Term Loans in Section 2.9(daccordance with this paragraph (b) until except to the date upon which extent that the aggregate amount of such Net Cash Proceeds received by SuperHoldingsfrom all Asset Sales or Recovery Events which have not been so applied equals or exceeds $20,000,000 in the aggregate; provided further that any prepayment of Revolving Loans, HoldingsSwingline Loans or Protective Advances pursuant to this Section 2.11(b) shall not result in a reduction in the Revolving Commitments.
(c) If, for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2014, there shall be Excess Cash Flow, the Borrower and their respective Subsidiaries and not previously applied shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Loans Term Loans. Each such prepayment shall exceed $1,000,000be 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 of the Borrower 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.[Reserved].
(d) All such amounts described in Sections 2.9(b[Reserved].
(i) In the event and on the occasion that the Total Revolving Extensions of Credit exceed the lesser of (x) the Total Revolving Commitments minus Reserves and (cy) (subject to the terms of Borrowing Base, the Intercreditor AgreementBorrower shall, in the case of any insurance without notice or condemnation proceedsdemand, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to within one Business Day prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of DefaultLoans, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.Swingline 48 509265-1832-141352041-Active.21575686.1328267668.14
(f) The Borrower application of any prepayment of Loans pursuant to this Section 2.11 shall notify the Administrative Agent (be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 (except in the case of prepayment of a Swing Line LoanRevolving Loans that are ABR Loans, the Swing Line LenderSwingline Loans and Protective Advances) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid and shall in every case be without premium, charge or penalty on account of such prepayment except such as would otherwise be due on account of a prepayment prior to the last day of an Interest Period.
(g) At all times during a Cash Dominion Period, on each Business Day, the Administrative Agent shall apply all funds credited to the Collection Account on such Business Day or the immediately preceding Business Day (at the discretion of the Administrative Agent, whether or not immediately available) first to prepay any Protective Advances then outstanding and second to prepay the Revolving Loans and Swingline Loans and to cash collateralize Letters of Credit in a manner satisfactory to the Administrative Agent and the Issuing Lender. Notwithstanding the foregoing, to the extent required by any funds credited to the Collection Account constitute Net Cash Proceeds from any Asset Sale or Recovery Event, the application of such Net Cash Proceeds shall be subject to Section 2.182.11(b).
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldingsthe Borrowers (excluding any Indebtedness permitted to be incurred pursuant to Section 6.02 hereof), Holdingsor any Equity Interests shall be issued by the Borrowers (other than Equity Interests (A) issued in connection with an Acquisition approved by the Bank, or (B) issued in connection with the redemption of the Equity Interest of a member of any Borrower otherwise permitted pursuant to this Agreement), then, in each case, within one Business Day of the date of receipt by a Borrower of the Net Cash Proceeds therefrom, the Borrower or any of their respective Subsidiaries, shall remit to the Bank an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds Proceeds, to be applied as set forth in Section 2.9(d), provided, however, that the foregoing requirements 2.08(c)(iv) hereof. The remittance of this paragraph (b) such net cash proceeds shall not apply be deemed to be a waiver of any Event of Default that may occur as a result of the Borrower’s incurring of such Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementor issuing such Equity Interests.
(cii) If on any date SuperHoldings, Holdings, the a Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then existsEvent, then, unless a Reinvestment Notice shall be delivered in respect thereofto any such Recovery Event, within five Business Days of the date of receipt by the Borrowers of such Net Cash Proceeds Proceeds, the Borrowers shall be applied on such date as set forth remit to the Bank, in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Datecase, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, 100% of such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required Proceeds, to be applied as set forth in Section 2.9(d2.08(c)(iv) until hereof; provided, however, that, notwithstanding the date upon which foregoing, so long as no Event of Default shall have occurred and be continuing, the aggregate amount Borrowers may reinvest all or any portion of such Net Cash Proceeds received by SuperHoldingsin operating assets used or useful in the Borrower's business so long as the Borrowers shall have delivered the requisite Reinvestment Notice and, Holdingswithin 180 days following receipt of such Net Cash Proceeds, the Borrower and their respective Subsidiaries and Borrowers shall have consummated the purchase of such replacement assets (as certified by the Borrowers in writing to the Bank); provided, further, that any Net Cash Proceeds not previously so reinvested shall be immediately applied toward to the prepayment of the Loans as set forth in Section 2.08(c)(iv). The remittance of the Net Cash Proceeds from such Asset Sale shall exceed $1,000,000not be deemed to be a waiver of any Event of Default that may occur as a result of such Asset Sale.
(diii) All such amounts described in Sections 2.9(b) If the audited financial statements for any one or more of the fiscal years ending December 31, 2018, 2019 and (c) (subject 2020 show Excess Liquidity, then Borrower shall pay to the terms Bank on the relevant Excess Liquidity Application Date, in each case, an amount equal to 100% of the Intercreditor Agreement, in the case of any insurance or condemnation proceedsExcess Liquidity for such year, to be applied as set forth in Section 2.08(c)(iv); provided, however, that the extent they arise from casualties or losses Borrowers shall not be required to equipmentmake any single payment pursuant to this Section 2.08(c)(iii) in excess of One Million Sixty-Six Thousand Six Hundred Sixty-Six and 67/100 Dollars ($1,066,666.67), fixtures regardless of whether Excess Liquidity for any applicable year exceeds such amount; and real propertyprovided further that the Borrowers shall not be required to make aggregate payments pursuant to this Section 2.08(c)(iii) in excess of Three Million Two Hundred Thousand Dollars ($3,200,000.00); and provided further that the Borrowers shall not be required to make a payment pursuant to this Section 2.08(c)(iii) if the Term Loan has been repaid in full.
(iv) Net Cash Proceeds required to be paid to the Bank pursuant to this Section 2.08(c) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by principal installments due pursuant to the Administrative AgentTerm Loan Note, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 inverse order of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (andmaturity, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before and accrued interest thereon to the date of prepaymentpayment, (ii) until the Term Loan has been repaid in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18full.
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred Upon receipt by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries of Net Cash Proceeds arising from an Asset Sale, Property Loss Event or Equity Issuance, the Borrower shall immediately prepay the Loans (or, if there are no Loans then outstanding, provide cash collateral in respect of Letters of Credit) in an amount equal to 100% of such Net Cash Proceeds. Any such mandatory prepayment shall be applied in accordance with CLAUSE (B) BELOW.
(b) 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 (pro rata between the Tranche A Facility and the Tranche B Facility in accordance with each Lender's Commitment) until such Revolving Loans shall have been paid in full; and THEN, if a Default or Event of Default shall be continuing, to provide cash collateral for any 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. All repayments required to be applied in accordance with this CLAUSE (B) (other than of Net Cash Proceeds of Asset Sales of the Specified Properties made in accordance with SECTION 8.4(D) (SALE OF ASSETS)) shall result in a permanent reduction in the Commitments to the extent provided in SECTION 2.6(B) (REDUCTION AND TERMINATION OF THE COMMITMENTS); PROVIDED, HOWEVER, that, if such prepayment was made from the Net Cash Proceeds thereof received during any Cash Dominion Period arising from a Reinvestment Event, the Commitments shall not be reduced by such prepayment to the extent of the Reinvestment Deferred Amount corresponding to such Reinvestment Event until the Reinvestment Prepayment Date corresponding thereto and, then, the Commitments shall be applied on reduced only to the date extent of receipt the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any; and PROVIDED, FURTHER, that, if any Default or Event of Default occurs prior to the Reinvestment Prepayment Date with respect to such Net Cash Proceeds as set forth in Section 2.9(d)Reinvestment Event, provided, however, that the foregoing requirements of this paragraph (b) Commitments shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on be reduced by the date of this Agreementfull Reinvestment Deferred Amount corresponding thereto.
(c) If on at any date SuperHoldingstime, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case sum of prepayment (A) the aggregate principal amount of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before Outstandings at such time and (B) the date of prepayment, Participation L/C Exposure at such time exceeds the aggregate Commitments at such time or (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the aggregate principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.outstanding 44
Appears in 1 contract
Samples: Credit Agreement (Washington Group International Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred Immediately upon receipt by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% its Restricted Subsidiaries of the any Net Cash Proceeds thereof received during of any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, sale or disposition by the Borrower or any of their respective its Restricted Subsidiaries shall receive of any of its assets, or any Net Cash Proceeds from any Asset Sale casualty insurance policies or Recovery Event (oreminent domain, in the event of damage by casualtycondemnation or similar proceedings, the date Borrower shall prepay the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered Obligations in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, all such Net Cash Proceeds which are not subject to a Reinvestment Notice Proceeds; provided that the Borrower shall not be required to prepay the Obligations with respect to Net Proceeds from the sales of assets in the ordinary course of business, from sales of assets or from any 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 Restricted Subsidiaries (other than in current assets) within 12 months following receipt thereof; provided that if any Net Proceeds are not so reinvested by the deadline specified above or if any such Net Proceeds are no longer intended to be applied or cannot be so reinvested, any such Net Proceeds shall be applied, in accordance with DB1/ 110470318.9 63 Section 2.12(d), to the prepayment of the Term Loans as set forth in this Section 2.9(d) until 2.12. If at the date upon which the aggregate amount of time that any such Net Cash Proceeds received by SuperHoldings, Holdingsprepayment would be required, the Borrower and their respective Subsidiaries and not previously applied toward is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the prepayment of Collateral ranking pari passu with the Lien securing the Term Loans shall exceed $1,000,000.
(dsuch Indebtedness, “Other Pari Indebtedness”) All such amounts described in Sections 2.9(b) and (c) (subject pursuant to the terms of the Intercreditor Agreementdocumentation governing such Indebtedness with the Net Proceeds from such disposition, casualty insurance policy or eminent domain, condemnation or similar proceeding, then the Borrower, at its election, may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the applicable Class(es) of Term Loans and Other Pari Indebtedness at such time) to the outstanding Classes of Term Loans and such Other Pari Indebtedness; provided, that the portion of such Net Proceeds allocated to the Other Pari Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the applicable Class(es) of Term Loans in accordance with the case terms hereof to the prepayment of any insurance the Term Loans and to the repurchase or condemnation proceedsprepayment of Other Pari Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.12(a) shall be reduced accordingly; provided, that to the extent they arise from casualties the holders of Other Pari Indebtedness decline to have such indebtedness repurchase or losses to equipmentprepaid, fixtures the declined amount shall promptly (and real propertyin any event within ten (10) shall Business Days after the date of such rejection) be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second applied to prepay the Swing Line applicable Class(es) of Term Loans and third in accordance with the terms hereof, (b) No later than the Business Day following the date of receipt by the Borrower or any of its Restricted Subsidiaries of any Net Proceeds from any issuance of Indebtedness by the Borrower or any of its Restricted Subsidiaries, (i) that is not permitted to be issued or incurred pursuant to Section 7.1 or (ii) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay the Revolving Credit Loans without a corresponding reduction Obligations in the Total Revolving Credit Commitments; provided that during an Event of Default, amount equal to all such amounts Net Proceeds. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(c) No later than five (5) Business Days after the date on which the Borrower’s annual audited financial statements for such Fiscal Year are required to be delivered pursuant to Section 2.15(f5.1(a) (beginning with the Fiscal Year ending December 31, 2021), (i) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than 2.50:1.00, the Borrower shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow for such Fiscal Year, (ii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.50:1.00 but greater than 2.00:1.00, the Borrower shall prepay the Obligations in an amount equal to 25% of Excess Cash Flow for such Fiscal Year and (iii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00, no prepayment shall be required; provided that such amount shall be reduced on a dollar-for-dollar basis for such Fiscal Year by the aggregate amount of voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.8, Revolving Loans) that rank pari passu in right of payment and security with the Term Loans made pursuant to Section 2.11, in each case, to the extent made with Internally Generated Cash during such fiscal year or after such Fiscal Year and prior to the time such prepayment is due (without duplication to subsequent years). If at the precise time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Pari Indebtedness, then the Borrower, at its election, may apply Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of insurance or condemnation proceeds allocable the Term Loans and Other Pari Indebtedness at such time) provided that the portion of such Excess Cash Flow allocated to Inventory as compared the Other Pari Indebtedness shall not exceed the amount of such Excess Cash Flow required to equipmentbe allocated to the Other Pari Indebtedness pursuant to the terms thereof, fixtures and real property is not otherwise determinedthe remaining amount, the allocation and application if any, of those proceeds such Excess Cash Flow shall be determined, subject allocated to the Intercreditor Agreementapplicable Class(es) of Term Loans in accordance with the terms hereof) to the prepayment of such Class(es) of Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the applicable Class(es) of Term Loans that would have
(d) Any prepayments made by the Administrative AgentBorrower pursuant to subsections (a), in its Permitted Discretion.
(eb) The Borrower agrees that during the period from September 1 through December 31 or (c) of each calendar year there this Section shall be a period applied as follows: first, to the principal balance of at least 30 consecutive days during which there are 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 in direct order of maturity; second, 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 Revolving Commitments (with no Loans outstanding.
(f) permanent reduction in the Revolving Commitments); and third, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Borrower shall notify the Administrative Agent (and, in the case writing of any mandatory prepayment of a Swing Line Loan, the Swing Line LenderTerm Loans required to be made pursuant to clauses (a) by telephone and (confirmed by facsimile or by other electronic transmissionc) of any prepayment hereunder this Section 2.12 prior to 1:00 p.m. at least five (i5) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before prior to the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and shall specify the date of such prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Xxxxxx’s Pro Rata Share of the prepayment with respect to any Class of Term Loans. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, provided that the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (a) or (c) of this Section 2.12 by providing written notice (each, a notice “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of optional prepayment may state that such notice is conditioned upon the Lender’s receipt of the proceeds notice from the issuance Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of other Indebtedness the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any other event, in which case such notice failure will be deemed an acceptance of prepayment may the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be revoked retained by the Borrower (by notice to “Retained Declined Proceeds”).
(e) If at any time the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any aggregate Revolving Credit Loan Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall be immediately repay the Revolving Loans in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayments. (a) In the event and If on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdingsdate TWTC, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Subsidiary shall receive Net Cash Proceeds in excess of $20,000,000 from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on applied, pursuant to Section 2.12(b), toward the prepayment of the Term Loan B Loans of each Term Loan B Lender that accepts an offer of such date prepayment as set forth in Section 2.9(d2.12(b); provided. If a Reinvestment Notice has been delivered with respect to a Reinvestment Event, that, notwithstanding then on the foregoing, on each relevant Reinvestment Prepayment Date, Date an amount equal to the Reinvestment Prepayment Amount with respect to the relevant such Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Term Loan B Loans of each Term Loan B Lender that accepts an offer of such prepayment as set forth in Section 2.12(b). Any prepayments of the Term Loan B Loans of each Term Loan B Lender that accepts an offer of such prepayment shall exceed $1,000,000be made prior to the time when the Borrower is required to make an “Offer to Purchase” (as defined in the Second Lien Note Indenture) pursuant to Section 4.11(c) of the Second Lien Note Indenture.
(db) All such amounts With respect to the amount of any mandatory prepayment described in Sections 2.9(bSection 2.12(a) (such amount, the “Term Loan B Prepayment Amount”), the Borrower will, on the date specified in Section 2.12(a) for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan B Lender a notice (each, a “Prepayment Option Notice”). As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan B Lender a Prepayment Option Notice, which shall be in the form of Exhibit I-1, and shall include an offer by the Borrower to prepay on the date (each a “Mandatory Prepayment Date”) that is 5 Business Days after the date of the Prepayment Option Notice, the relevant Term Loan B Loans of such Term Loan B Lender by an amount equal to the portion of the Term Loan B Prepayment Amount indicated in such Term Loan B Lender’s Prepayment Option Notice as being applicable to such Term Loan B Lender’s Term Loan B Loans. On the Mandatory Prepayment Date, (i) the Borrower shall pay to the Administrative Agent for the account of the relevant Term Loan B Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loan B Loans in respect of which such Term Loan B Lenders have accepted prepayment as described above and the Borrower shall be entitled to retain the remaining portion of the Term Loan B Prepayment Amount not accepted by the relevant Term Loan B Lenders.
(c) (subject Amounts to be applied in connection with prepayments made as so accepted by the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, Term Loan B Lenders pursuant to the extent they arise from casualties or losses to equipment, fixtures and real propertySection 2.12(b) shall be applied, first applied to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line prepayment of the Term Loan B Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f2.18(c). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice pursuant to Section 2.12 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Term Loan B Loans included in the prepaid Borrowing. Prepayments under Section 2.12 shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. (a) In Immediately upon receipt by the event and on such occasion that:
(i) the Exposure Borrower or any of its Restricted Subsidiaries of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) Net Proceeds of any sale or disposition by the Total Exposure exceeds the lesser Borrower or any of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; its Restricted Subsidiaries of any of its assets, or any Net Proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall repay prepay the Revolving Credit Loans Obligations in an amount equal to all such Net Proceeds; provided that the extent Borrower shall not be required to prepay the Obligations with respect to Net Proceeds from the sales of such excessassets in the ordinary course of business, from sales of assets or from any 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 Restricted Subsidiaries (other than in current assets) within 12 months following receipt thereof; provided that if any Net Proceeds are not so reinvested by the deadline specified above or if any such Net Proceeds are no longer intended to be or cannot be so reinvested, any such Net Proceeds shall be applied, in accordance with Section 2.12(d), to the prepayment of the Term Loans as set forth in this Section 2.12. If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans (such Indebtedness, “Other Pari Indebtedness”) pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds from such disposition, casualty insurance policy or eminent domain, condemnation or similar proceeding, then the Borrower, at its election, may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of Revolving Credit the applicable Class(es) of Term Loans then and Other Pari Indebtedness at such time) to the outstanding is less than Classes of Term Loans and such Other Pari Indebtedness; provided, that the portion of such Net Proceeds allocated to the Other Pari Indebtedness shall not exceed the amount of such excess Net Proceeds required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.12(a) shall be reduced accordingly; provided, that to the extent the holders of Other Pari Indebtedness decline to have such indebtedness repurchase or prepaid, the declined amount shall promptly (because L/C Obligations and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the applicable Class(es) of Term Loans in accordance with the terms hereof,
(b) No later than the Business Day following the date of receipt by the Borrower or any of its Restricted Subsidiaries of any Net Proceeds from any issuance of Indebtedness by the Borrower or any of its Restricted Subsidiaries, (i) that is not permitted to be issued or incurred pursuant to Section 7.1 or (ii) that is intended to constitute a portion thereof)Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrower shallshall prepay the Obligations in an amount equal to all such Net Proceeds. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(c) No later than five (5) Business Days after the date on which the Borrower’s annual audited financial statements for such Fiscal Year are required to be delivered pursuant to Section 5.1(a) (beginning with the Fiscal Year ending December 31, 2021), (i) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is greater than 2.50:1.00, the Borrower shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow for such Fiscal Year, (ii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.50:1.00 but greater than 2.00:1.00, the Borrower shall prepay the Obligations in an amount equal to 25% of Excess Cash Flow for such Fiscal Year and (iii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00, no prepayment shall be required; provided that such amount shall be reduced on a dollar-for-dollar basis for such Fiscal Year by the aggregate amount of voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.8, Revolving Loans) that rank pari passu in right of payment and security with the Term Loans made pursuant to Section 2.11, in each case, to the extent made with Internally Generated Cash during such fiscal year or after such Fiscal Year and prior to the time such prepayment is due (without duplication to subsequent years). If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Pari Indebtedness, then the Borrower, at its election, may apply Excess Cash Flow on a pro rata basis (determined on the basis of the balance aggregate outstanding principal amount of the Term Loans and Other Pari Indebtedness at such time) provided that the portion of such excessExcess Cash Flow allocated to the Other Pari Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, replace outstanding Letters and the remaining amount, if any, of Credit and/or deposit an amount such Excess Cash Flow shall be allocated to the applicable Class(es) of Term Loans in cash in a cash collateral account established accordance with the Administrative Agent for terms hereof) to the benefit prepayment of such Class(es) of Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the Lenders on applicable Class(es) of Term Loans that would have otherwise been required pursuant to this Section 2.12(c) shall be reduced accordingly; provided that to the extent the holders of Other Pari Indebtedness decline to have such indebtedness repurchases or prepaid, the declined amount shall promptly (and in any event within then (10) Business Days after the date of such rejection) be applied to prepay the applicable Class(es) of Term Loans in accordance with the terms hereof.Any such prepayment shall be applied in accordance with subsection (d) of this Section. Any such prepayment shall be accompanied by a certificate signed by the Borrower’s chief financial officer certifying in reasonable detail the manner in which Excess Cash Flow and conditions the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(bd) If any Indebtedness shall be incurred Any prepayments made by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal pursuant to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(dsubsections (a), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
or (c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in this Section 2.9(d); 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 as set forth follows: first, to the principal balance of the Term Loans, until the same shall have been paid in Section 2.9(dfull, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans in direct order of maturity; second, 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 Revolving Commitments (with no permanent reduction in the Revolving Commitments); and provided furtherthird, that notwithstanding to Cash Collateralize the foregoing, such Net Cash Proceeds which are not subject Letters of Credit in an amount in cash equal to a Reinvestment Notice shall not be required to be applied the LC Exposure as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower date plus any accrued and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f)unpaid fees thereon. If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case writing of any mandatory prepayment of a Swing Line Loan, the Swing Line LenderTerm Loans required to be made pursuant to clauses (a) by telephone and (confirmed by facsimile or by other electronic transmissionc) of any prepayment hereunder this Section 2.12 prior to 1:00 p.m. at least five (i5) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before prior to the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and shall specify the date of such prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s Pro Rata Share of the prepayment with respect to any Class of Term Loans. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, provided that the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (a) or (c) of this Section 2.12 by providing written notice (each, a notice “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of optional prepayment may state that such notice is conditioned upon the Lender’s receipt of the proceeds notice from the issuance Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of other Indebtedness the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any other event, in which case such notice failure will be deemed an acceptance of prepayment may the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be revoked retained by the Borrower (by notice “Retained Declined Proceeds”).
(e) If at any time the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise, the Borrower shall immediately repay the 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 2.19. Each prepayment shall be applied as follows: first, to the Base Rate Loans to the full extent thereof; and second, to the Eurodollar Loans to the full extent thereof. If, after giving effect to prepayment of all Revolving Loans, the aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued and unpaid fees thereon.
(f) Notwithstanding any provision of this Section 2.12 to the contrary, (i) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent on that any or prior all of the Net Proceeds received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary giving rise to a prepayment event pursuant to subsections (a) or (c) is prohibited or delayed by applicable local law from being repatriated to the specified date) if United States, the portion of such condition is Net Proceeds or Excess Cash Flow so affected will not satisfiedbe required to be applied to prepay Term Loans at the times provided in this Section 2.12, but may be retained by the Borrower or the applicable Foreign Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation to the United States. Promptly following receipt Once such repatriation of any of such notice affected Net Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be effected promptly and such repatriated Net Proceeds or Excess Cash Flow will be promptly applied (other than net of additional taxes payable or reserved against as a notice relating solely result thereof) to Swing Line Loansthe prepayment of the Term Loans pursuant to this Section 2.12 to the extent provided herein; provided that the Borrower hereby agrees, and will cause any applicable Restricted Subsidiary, to promptly take all commercially reasonable actions required by applicable local law to permit any such repatriation; or (ii) to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith in consultation with the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment that repatriation of any Revolving Credit Loan shall of or all the Net Proceeds received by a Foreign Subsidiary or Excess Cash Flow attributable to a Foreign Subsidiary giving rise to a prepayment event pursuant to this Section 2.12 would have a material adverse tax consequence, then in each case the Net Proceeds or Excess Cash Flow so affected will not be in an amount that would required to be permitted in applied to prepay Term Loans at the case of an advance of a Borrowing of the same Type as times provided in this Section 2.1. Each prepayment 2.12, but may be retained by the Borrower or the applicable Foreign Subsidiary without being repatriated; provided that when the Borrower determines in good faith that repatriation of any of or all the Net Proceeds or Excess Cash Flow, in each case, from a Borrowing Foreign Subsidiary would no longer have a material adverse tax consequence with respect to such Net Proceeds or Excess Cash Flow, such Net Proceeds or Excess Cash Flow shall be applied ratably (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans included in pursuant to Section 2.12(a) or Section 2.12(c), as applicable; provided that, the prepaid BorrowingBorrower shall take all commercially reasonable actions available under local law to permit such repatriation. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18The non- application of proceeds as a consequence of this subsection (f) will not constitute an Event of Default under this Agreement.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayments. Subject to the DIP Order (including the Priority Waterfall) in all respects:
(a) In Upon the event and on such occasion that:
(i) the Exposure occurrence or happening of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) Event of Loss and the Total Exposure exceeds the lesser receipt of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; Event of Loss Proceeds in respect thereof, the Borrower shall repay be required (subject to the payment and lien priority in favor of the holders of Revolving Credit Loans Obligations (including any adequate protection claims and liens with respect thereto) to the extent set forth in the DIP Order) to repay the Loans upon an Event of such excess, provided that if the Loss equal in aggregate principal amount to the Event of Revolving Credit Loans then outstanding is less than the amount Loss Proceeds received in respect of such excess loss (because L/C Obligations constitute a portion thereofrounded to the nearest $1,000), the Borrower shallat a redemption price, with respect to the extent of the balance of such excessLoans, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash principal amount thereof, plus accrued and unpaid interest and any additional amounts required under Section 4.07, if any, on the Loans redeemed to the applicable redemption date, subject to the rights of the Lenders on the relevant record date to receive interest due on the relevant interest payment date. The Borrower shall deliver the repayment notice to the Lenders within 10 days after the receipt of any Event of Loss Proceeds. All Event of Loss Proceeds received in respect of an Event of Loss will be required to be deposited in a deposit account controlled by the Collateral Agent within three business days of the receipt thereof received during any Cash Dominion Period and held as Collateral subject to a Lien under the Security Documents pending application thereof to the redemption or repayment of the Term Loans.
(b) The Borrower shall be applied on required (subject to the date payment and lien priority in favor of receipt the holders of such Net Cash Proceeds Revolving Credit Obligations as set forth in the DIP Order) to repay the Term Loans using the Net Proceeds from Asset Sales as required by Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement7.18.
(c) If on any date SuperHoldingsNotwithstanding anything to the contrary contained elsewhere in this Agreement, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice all Loans shall be delivered due and payable in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, full on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Maturity Date.
Appears in 1 contract
Samples: Superpriority Secured Debtor in Possession Term Loan Agreement (Pacific Drilling S.A.)
Mandatory Prepayments. (a) In If any Capital Stock shall be issued by any Group Member, an amount equal to 50% of the event Net Cash Proceeds thereof shall be applied within three (3) Business Days after the date of such issuance toward the prepayment of the Term Loans and on such occasion that:
other amounts as set forth in Section 2.12(e), other than (i1) the Exposure issuance by any Subsidiary of Capital Stock to Holdings or any Lender exceeds such Lender’s Revolving Credit Commitment; or
other Subsidiary, as applicable, in accordance with the terms hereof, (ii2) the Total Exposure exceeds issuance of Capital Stock by Holdings to any Permitted Investor (and other existing equity holder on a pro rata basis at the lesser time of issuance to such Permitted Investor), and (3) the issuance of Capital Stock of Holdings to directors, officers and employees of Holdings and its Subsidiaries (x) Total Revolving Credit Commitments and pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the board of directors or (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans otherwise, in an aggregate amount for all such Net Cash Proceeds under this subclause (y) not to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agentexceed $500,000.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on within three (3) Business Days after such date toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e); provided, that, 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 a Reinvestment Notice shall not exceed $1,000,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms If, for any fiscal year of the Intercreditor AgreementBorrower commencing with the fiscal year ending December 31, in 2018, there shall be Excess Cash Flow, the case Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of any insurance or condemnation proceeds, such Excess Cash Flow (less the aggregate amount of all prepayments of Revolving Loans during such fiscal year to the extent they arise from casualties or losses to equipment, fixtures accompanying optional permanent reductions of the Revolving Commitments and real propertyall optional prepayments of the Term Loans during such fiscal year) toward the prepayment of the Loans and other amounts as set forth in Section 2.12(e). Each such prepayment shall be appliedmade on a date (an “Excess Cash Flow Application Date”) no later than the earliest of (i) three (3) Business Days after the date on which the financial statements of the Borrower referred to in Section 6.1(a), first for the fiscal year with respect to prepay any Protective Advances that may which such prepayment is made, are required to be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject delivered to the Intercreditor AgreementLenders, by and (ii) three (3) Business Days after the Administrative Agent, in its Permitted Discretiondate such financial statements are actually delivered.
(e) The Borrower agrees that during Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 and in connection with the period from September 1 through December 31 of each calendar year there Cure Right shall be applied, first, to the prepayment of the Term Loans pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders and to the principal installments thereof on a period pro rata basis until paid in full, and; second, to the extent of at least 30 consecutive days during which there are any residual, if no such Term Loans remain outstanding, to the prepayment of the Revolving Loans (with no corresponding permanent reduction in the Revolving Commitments); and third, to the extent of any residual, if no such 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 established with the Administrative Agent for the benefit of the L/C Lenders on terms and conditions reasonably satisfactory to the Issuing Lenders. Each prepayment of the Loans under this Section 2.12 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(f) The Borrower shall notify deliver to the Administrative Agent (andAgent, in at the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount time of each Borrowing or portion thereof to be prepaid andprepayment required under this Section 2.12 (each, a “Mandatory Prepayment Date”), a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepaymentprepayment or reduction.
(g) Notwithstanding any other provisions of this Section 2.12, provided (A) to the extent that a notice of optional prepayment may state that such notice is conditioned upon the receipt any or all of the proceeds Net Cash Proceeds of any Asset Sale or Recovery Event by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.12(c) (a “Foreign Disposition”), or Excess Cash Flow are prohibited or delayed by applicable local law from being repatriated to the issuance United States, the portion of other Indebtedness such Net Cash Proceeds or any other event, Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in which case such notice of prepayment this Section 2.11 but may be revoked retained by the Borrower (by notice applicable Foreign Subsidiary so long, but only so long, as the applicable local law will not permit repatriation to the Administrative Agent on United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or prior Excess Cash Flow is permitted under the applicable local law, such repatriation will be immediately effected and such repatriated Net Cash Proceeds or Excess Cash Flow 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 specified daterepayment of the Loans pursuant to this Section 2.12 to the extent provided herein and (B) if such condition is not satisfied. Promptly following receipt to the extent that the Borrower has determined in good faith that repatriation of any such notice (other than a notice relating solely to Swing Line Loans) of or all the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment Net Cash Proceeds of any Revolving Credit Loan shall Foreign Disposition or Excess Cash Flow would have a material adverse tax cost consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Cash Proceeds or Excess Cash Flow, the Net Cash Proceeds or Excess Cash Flow so affected may be in an amount that would be permitted retained by the applicable Foreign Subsidiary; provided that, in the case of an advance of a Borrowing of this clause (B), on or before the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall date on which any Net Cash Proceeds so retained would otherwise have been required to be applied ratably to reinvestments or prepayments pursuant to this Section 2.12(c) (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), the Loans included in Borrower applies an amount equal to such Net Cash Proceeds or Excess Cash Flow to such reinvestments or prepayments as if such Net Cash Proceeds or Excess Cash Flow had been received by the prepaid Borrowing. Prepayments shall Borrower rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against if such Net Cash Proceeds or Excess Cash Flow had been repatriated (or, if less, the Net Cash Proceeds or Excess Cash Flow that would be accompanied calculated if received by accrued interest to the extent required by Section 2.18such Foreign Subsidiary).
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of If any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; Capital Stock shall be issued by the Borrower (excluding any Capital Stock issued to any Group Member, OCM Specta Holdings, Inc., Blackstone SG Mezzanine Corporation, any member of the management of the Borrower or any of its Subsidiaries, any member of the Sponsor Group or any of their permitted transferees pursuant to Article IX of the Operating Agreement), an amount equal to 50% of the Net Cash Proceeds thereof shall repay be applied on the Revolving Credit Loans to the extent date of such excess, provided that if issuance toward the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent prepayment of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount Term Loans as set forth in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative AgentSection 2.11(e).
(b) If any Indebtedness shall be incurred by SuperHoldingsany Group Member (excluding any Indebtedness incurred in accordance with Section 7.2, Holdings, including in such excluded Indebtedness the Borrower or Senior Subordinated Notes and any of their respective SubsidiariesGuarantee Obligations in respect thereof), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans as set forth in Section 2.9(d2.11(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then existsEvent, then, unless a Reinvestment Notice shall be delivered in respect thereof, 100% of such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(e); provided, that, 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 a Reinvestment Notice shall not exceed $500,000 in any fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(e); and provided further.
(d) If, that notwithstanding for any fiscal year of the foregoingBorrower commencing with the fiscal year ending December 31, 2005 there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the Excess Cash Flow Percentage of such Net Excess Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied Flow toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(e). Each such prepayment and commitment reduction shall be made on a date (an "Excess Cash Flow Application Date") until no later than five days after the earlier of (i) the date upon on which the aggregate amount financial statements of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment of is made, are required to be delivered to the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) Lenders and (cii) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all date such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionfinancial statements are actually delivered.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there Amounts to be applied in connection with prepayments made pursuant to Section 2.11 shall be a period applied to the prepayment of at least 30 consecutive days during which there are no the Term Loans outstanding.
(f) in accordance with Section 2.17(b). The Borrower application of any prepayment pursuant to Section 2.11 shall notify the Administrative Agent (be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under Section 2.11 (except in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Swingline Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. (a1) In If the event and on such occasion that:
(i) the Exposure Borrower or any of its Subsidiaries Disposes of any Lender exceeds property (other than any Disposition of any property permitted by Section 6.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party), or (f)) or any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or any such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser Subsidiary of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; Net Proceeds, the Borrower shall repay the Revolving Credit Loans to the extent make a prepayment, in accordance with Section 2.11(b)(i)(3), of such excess, provided that if the an aggregate principal amount of Revolving Credit Loans then outstanding is less than equal to 100% of all such Net Proceeds realized or received by the amount Borrower or such Subsidiary in connection with such Disposition or Casualty Event; provided that no such prepayment shall be required pursuant to this Section 2.11(b)(i)(1) with respect to such portion of such excess Net Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.11(b)(i)(2) (because L/C Obligations constitute a portion thereofwhich notice may only be provided if no Default has occurred and is continuing).
(2) With respect to any Net Proceeds realized or received with respect to any Disposition (other than any Disposition expressly excluded from the application of Section 2.11(b)(i)(1)) or any Casualty Event, at the option of the Borrower, the Borrower shallmay, to within 12 months following receipt of such Net Proceeds, reinvest all or any portion of such Net Proceeds in assets useful for the extent business of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms Borrower and conditions satisfactory to the Administrative Agent.
its Subsidiaries; provided that (bA) If so long as any Indebtedness Default shall have occurred and be incurred by SuperHoldings, Holdingscontinuing, the Borrower shall not be permitted to make any such reinvestments (other than pursuant to a legally binding commitment that the Borrower entered into at a time when no Default is continuing) and (B) if any Net Proceeds are not so reinvested by the deadline specified above or if any such Net Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of their respective Subsidiariesa notice of reinvestment election, an amount equal to 100% of the any such Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on applied, in accordance with Section 2.11(b)(i)(3), to the prepayment of the Revolving Loans as set forth in this Section 2.11.
(3) On each occasion that the Borrower must make a prepayment of the Revolving Loans pursuant to this Section 2.11(b)(i), the Borrower shall, as promptly as reasonably practicable and in any event within five Business Days after the date of realization or receipt of such Net Cash Proceeds as set forth (or, in the case of prepayments required pursuant to Section 2.9(d2.11(b)(i)(2), providedas promptly as reasonably practicable and in any event within two Business Days after the deadline specified therein, howeveror after the date the Borrower reasonably determines that such Net Proceeds are no longer intended to be or cannot be so reinvested, that as the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred case may be), make a prepayment, in accordance with Section 7.2 as 2.11(b)(iv) below, of the principal amount of Revolving Loans in effect on the date an amount equal to 100% of this Agreementsuch Net Proceeds realized or received.
(cii) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from incurs or issues any Asset Sale Indebtedness not expressly permitted to be incurred or Recovery Event (or, in the event of damage by casualtyissued pursuant to Section 6.01, the date the repair or restoration Borrower shall cause to be prepaid an aggregate principal amount of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount Revolving Loans equal to 100% of all Net Proceeds received therefrom as promptly as reasonably practicable and in any event within five Business Days after the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount receipt of such Net Cash Proceeds received by SuperHoldingsProceeds.
(iii) Except as expressly permitted under Section 2.01(c), Holdingsif at any time the aggregate Revolving Exposure of all Revolving Lenders would exceed the Line Cap then in effect, the Borrower shall immediately repay or prepay Revolving Borrowings (and, after the Revolving Borrowings shall have been repaid or prepaid in full, replace, cause to be cancelled or Cash Collateralize (or make other arrangements satisfactory to the Administrative Agent and their respective Subsidiaries and not previously applied toward the prepayment applicable Issuing Bank with respect to) Letters of the Loans shall exceed $1,000,000Credit) in an amount sufficient to eliminate such excess.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(fiv) The Borrower shall notify the Administrative Agent (and, in the case writing of any mandatory prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder Revolving Loans required to be made pursuant to clauses (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment), (ii) in the case and (iii) of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one this Section 2.11(b) at least three Business Day before Days prior to the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and shall specify the date of such prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
(v) Prepayments of the Revolving Loans made pursuant to clause (iii) of this Section 2.11(b) shall be applied first to prepay to L/C Borrowings then outstanding until such L/C Borrowings are paid in full, second, to prepay Revolving Loans then outstanding comprising part of the same Borrowings until such Loans are paid in full and third, to Cash Collateralize 105% of the aggregate Stated Amount of Letters of Credit then outstanding; provided that a notice the remaining amount (if any) after the prepayment in full of optional prepayment may state that such notice is conditioned upon Loans and extensions of credit then outstanding and the receipt 105% Cash Collateralization of the proceeds from the issuance aggregate Stated Amount of other Indebtedness or any other event, in which case such notice Letters of prepayment Credit then outstanding may be revoked retained by the Borrower Borrower. Upon the drawing of any Letter of Credit which has been Cash Collateralized (by notice in whole or in part), such Cash Collateral shall be applied to reimburse the applicable Issuing Bank or the Revolving Lenders, as applicable. Each such prepayment shall be paid to the Revolving Lenders in accordance with their respective Pro Rata Shares.
(vi) Upon the occurrence, and during the continuance of a Cash Dominion Period, subject to the provisions of Section 7.03, on each Business Day, the Administrative Agent shall apply all disbursements and payments made in immediately available funds credited to the Agent Sweep Account, to repay or prepay Loans (and, after the Loans shall have been repaid or prepaid in full, replace, cause to be cancelled or Cash Collateralize (or make other arrangements satisfactory to the Administrative Agent on or prior to and the specified dateapplicable Issuing Bank with respect to) if such condition is not satisfied. Promptly following receipt Letters of any such notice Credit.
(other than a notice relating solely to Swing Line Loansvii) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type Except as provided in Section 2.1. Each prepayment 2.05(b)(i) prepayments under this Section 2.11(b) shall not result in a reduction of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Revolving Commitments.
Appears in 1 contract
Samples: Credit Agreement (Lmi Aerospace Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) At the Exposure option of the Lender in its sole and absolute discretion, no later than the fifth Business Day following the receipt of any Lender exceeds Net Proceeds in respect of any Prepayment Asset Sale or any Casualty/Condemnation Event, in each case, in excess of (x) $5,000,000 in a single transaction or series of related transactions and (y) $20,000,000 in any fiscal year, the Borrower shall apply an amount (collectively, the “Subject Proceeds”) equal to 100% of such Lender’s Revolving Credit CommitmentNet Proceeds in excess of such thresholds set forth in the foregoing clauses (x) and (y) to prepay the outstanding Loan, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment; and together with any other Obligations then due and owing, if any, under this Agreement and the other Loan Documents; provided, that if Holdings or any of its Subsidiaries intends to reinvest such Net Proceeds in the business of Holdings or any of its subsidiaries (including any acquisitions or other Investment permitted under Section 6.05) within 18 months following receipt thereof, then no prepayment shall be required pursuant to this clause (i) in respect of such Net Proceeds (or the applicable portion thereof, if applicable) except to the extent of any such Net Proceeds that have not been so invested (or contractually committed to be invested) by the end of such 18-month period (or, if contractually committed to be so invested within such 18-month period, have not been so invested within 24 months after receipt thereof), at which time a prepayment shall be required in an amount equal to such Net Proceeds that have not been so invested (or contractually committed to be invested).
(ii) At the Total Exposure exceeds option of the lesser Lender in its sole and absolute discretion, in the event that Holdings or any of its Subsidiaries shall receive Net Proceeds from the issuance or incurrence of Indebtedness of Holdings or any of its Subsidiaries (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans other than with respect to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofIndebtedness permitted under Section 6.01), the Borrower shall, to substantially simultaneously with (and in any event not later than the extent of Business Day immediately following) the balance receipt of such excessNet Proceeds by Holdings or such Subsidiary, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, apply an amount equal to 100% of such Net Proceeds to prepay the Net Cash Proceeds thereof received during any Cash Dominion Period shall outstanding Loan together in each case with accrued and unpaid interest on the principal amount to be applied on paid to but excluding the date of such payment; and together with any other Obligations, if any, then due and owing under this Agreement and the other Loan Documents.
(iii) The Lender may elect in its sole and absolute discretion, by written notice to the Borrower no later than 1:00 p.m. one Business Day prior to any prepayment of the Loan required to be made by the Borrower pursuant to this Section 2.03(b), to decline all or any portion of any such mandatory prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower. If the Lender fails to deliver a notice of election declining receipt of such Net Cash Proceeds as set forth mandatory prepayment to the Borrower within the time frame specified above, the Borrower shall promptly (but in Section 2.9(d), provided, however, that any event within one Business Day) send a written notice to the foregoing requirements of this paragraph (b) shall Lender requesting the Lender to make a determination whether or not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementdecline such amounts.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(fiv) The Borrower shall notify deliver to the Administrative Agent (and, in Lender written notice no later than 12:00 p.m. two Business Days prior to the case time of each prepayment of a Swing Line Loanrequired under Section 2.03(b); furthermore, the Swing Line Borrower shall deliver to the Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in , at the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount time of each Borrowing or portion thereof to be prepaid andprepayment required under this Section 2.03(b), a certificate signed by a Responsible Officer of the Borrower setting forth in reasonable detail the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that . Each such notice is conditioned upon certificate shall specify the receipt principal amount of the proceeds from the issuance of other Indebtedness Loan or any other event, in which case such notice of prepayment may portion thereof to be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowingprepaid. Prepayments shall be accompanied by accrued interest to the extent as required by Section 2.182.05. All prepayments of the Loan under this Section 2.03(b) shall be subject to Section 2.03(c).
Appears in 1 contract
Samples: Secured Seller Note Agreement (American Water Works Company, Inc.)
Mandatory Prepayments. (a) In the event If any Indebtedness (other than any Indebtedness permitted to be incurred in accordance with Section 7.2 or Section 7.14, but excluding any Refinancing Debt and on such occasion that:
any Refinancing Incremental Equivalent Debt (i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shallin each case, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount proceeds thereof are applied in cash in a cash collateral account established accordance with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent.
(brespective definitions)) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesRestricted Subsidiary, the Borrower shall pay an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on of such Indebtedness within one Business Day of the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that thereof to the foregoing requirements of this paragraph (b) shall not apply Administrative Agent to any Indebtedness incurred be applied to the Obligations in accordance with Section 7.2 as in effect on the date of this Agreement2.18.
(cb) If on any date SuperHoldings, Holdings, of the Borrower or any of their respective Subsidiaries Restricted Subsidiary shall for its own account receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof (within three Business Days of such receipt), the Borrower shall pay an amount equal to 100% of such Net Cash Proceeds shall within three Business Days of the date of receipt thereof to the Administrative Agent to be applied on such date as set forth to the Obligations in accordance with Section 2.9(d)2.18; provided, that, provided that notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be paid to the Administrative Agent to be applied as set forth to the Obligations in accordance with Section 2.9(d)2.18 and (ii) on the date (the “Trigger Date”) that is 180 days after any such Reinvestment Prepayment Date, an amount equal to the portion of any Committed Reinvestment Amount with respect to the relevant Reinvestment Event not actually expended by such Trigger Date shall be paid to the Administrative Agent to be applied to the Obligations in accordance with Section 2.18; and provided further, that notwithstanding no prepayment pursuant to this Section 2.12(b) shall be required to the foregoing, such extent that the Net Cash Proceeds which received by the Borrower and the Restricted Subsidiaries, taken as a whole, from any Asset Sales or Recovery Events (or series of related Asset Sales or Recovery Events) are not subject less than (A) $5,000,000 per Asset Sale or Recovery Event (or series of related Asset Sales or Recovery Events) or (B) $10,000,000 in the aggregate in any twelve month period.
(c) Upon the consummation of an IPO, the Borrower shall prepay an aggregate principal amount of Term Loans equal to a Reinvestment Notice shall not be required 50% of all Net Cash Proceeds received therefrom within one Business Day of the date of receipt thereof by the Borrower, Holdings or the applicable Parent Holding Company, to the Administrative Agent to be applied as set forth to the Obligations in accordance with Section 2.9(d2.18.
(d) until Commencing with respect to the fiscal year ending December 31, 2019, not later than thirty (30) days after the date upon on which the Borrower is required to deliver financial statements with respect to the end of such Excess Cash Flow Period under Section 6.1(a), if the Consolidated Total Leverage Ratio (as determined of the last day of such Excess Cash Flow Period) is greater than 4.50:1.00, the Borrower shall calculate Excess Cash Flow for the relevant Excess Cash Flow Period (the “Excess Cash Flow Calculation Date”) and the Borrower shall prepay the Term Loans, without premium or penalty (but subject to Section 2.21), in an amount equal to (i) the ECF Required Percentage times the amount of such Excess Cash Flow, minus (ii) in each case to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity more than twelve months from the date of incurrence thereof and not previously deducted pursuant to this clause (ii) in any prior period, the amount of any voluntary prepayments during such Excess Cash Flow Period and, at the option of the Borrower, made after the end of such Excess Cash Flow Period and on or prior to the Excess Cash Flow Calculation Date, of (1) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, prepayment for purposes of this clause shall be the Borrower and their respective Subsidiaries and not previously applied toward the prepayment amount of the Borrower’s cash payment in respect of such prepayment), (2) Revolving Loans shall exceed $1,000,000.
or Incremental Revolving Loans (d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceedseach case, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction commitments in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, respect thereof are permanently reduced by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepaymentprepayments), provided (3) Refinancing Loans, Incremental Loans, Incremental Equivalent Debt and any other Indebtedness permitted under Section 7.1 that in each case is secured by the Collateral on a notice pari passu basis with the Obligations and (4) any Refinancing Indebtedness in respect of optional prepayment may state that such notice is conditioned upon the receipt any of the proceeds from foregoing that is secured by the issuance of other same collateral, and with the same priority, as the Indebtedness or any other eventbeing refinanced, in each case, permitted hereunder; provided, however, that no prepayment pursuant to this Section 2.12(d) shall be required with respect to any Excess Cash Flow Period for which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loansy) the Administrative Agent shall advise the Lenders Consolidated Total Leverage Ratio (as determined of the contents thereof. Each partial voluntary last day of such Excess Cash Flow Period) is less than or equal to 4.50:1.00 or (z) such prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18less than $5,000,000.
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower Company or any of their respective Subsidiariesits Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.01), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on within five Business Days of the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans and the Term Loans A-1 as set forth in Section 2.9(d2.13(c)(iii), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(cii) If on any date SuperHoldings, Holdings, the Borrower Company or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof within five Business Days of the receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d)within ten Business Day following receipt thereof toward the prepayment of the Term Loans and the Term Loans A-1; 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 as set forth in Section 2.9(d); toward the prepayment of the Term Loans and provided furtherthe Term Loans A-1. For the avoidance of doubt, the parties hereto acknowledge and agree that notwithstanding the foregoing, such Net Cash Proceeds from the Company’s sale of Xxxxxx May Confections Brands, Inc. (including its subsidiaries, Xxxxxx May Confections, Inc. and Xxxxx London Candies, Inc.), which are not subject would otherwise have been required to be applied to make a Reinvestment Notice prepayment of the Existing Term Loans under the Existing Credit Agreement unless reinvested as provided therein, shall not be required to be applied as set forth in Section 2.9(d) until to prepay the date upon which the aggregate amount of Term Loans and such Net Cash Proceeds received by SuperHoldings, Holdings, shall be deemed to have been reinvested in accordance with the Borrower and their respective Subsidiaries and not previously provisions hereof.
(iii) Amounts to be applied toward in connection with prepayments shall be applied to the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Term Loans and third to prepay the Revolving Credit Term Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied A-1 in accordance with Section 2.15(f)2.20. If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (ito a particular Class pursuant to this Section 2.13(c) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under this Section 2.13(c) shall be accompanied by accrued interest to the extent required by date of such prepayment on the amount prepaid. Each prepayment of the Term Loans and the Term Loans A-1 in accordance with this Section 2.182.13(c) shall be made on a pro rata basis between the Term Loans and the Term Loans A-1 and, in each case, shall be applied to installments thereof in the inverse order of maturity.
Appears in 1 contract
Mandatory Prepayments. The Borrower shall make mandatory prepayments of the Loans as follows:
(a) In the event and If, on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdingsdate, the Borrower or any of their respective its Subsidiaries shall sell, assign, lease, transfer, contribute, convey, issue or otherwise dispose of, or grant options, warrants or other rights with respect to, any of its assets (any of the foregoing being a "Disposition"), other than a Disposition (i) permitted under Section 9.2, (ii) permitted under Section 9.3, or (iii) to the Borrower or its directly owned Subsidiaries, and such Disposition results in Net Proceeds in excess of $200,000, the Borrower shall promptly notify the Administrative Agent (which shall promptly notify the Lenders) of such Disposition, including the amount of Net Proceeds received by the Borrower or any Subsidiary in respect of such Disposition (and the amount and other type of consideration so received) and, subject to the terms of the Collateral Sharing Agreement, an amount equal to the Lender Net Proceeds Portion shall be promptly applied after the receipt from time to time of such Net Proceeds to repay the outstanding principal of the Loans (together with any interest accrued thereon). To the extent the Lender Net Proceeds Portion of any such Disposition exceeds the amount of the Loans then outstanding (together with any interest accrued thereon), or, at the time of such Disposition the Loans shall have been paid in full, subject to the terms of the Collateral Sharing Agreement, such Net Proceeds, up to 100% of such Net Proceeds, after giving effect to the Pari Passu Lender Net Cash Proceeds thereof received during any Cash Dominion Period Portion from such Disposition concurrently being applied under the Pari Passu Credit Agreement, shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(dto repay, first, any remaining Liabilities, second, any Pari Passu Loans then outstanding (together with any interest accrued thereon), providedthird, howeverany other remaining Pari Passu Liabilities, that the foregoing requirements fourth, any Letters of this paragraph Credit drawn and unreimbursed (including any interest accrued thereon) and, fifth, any other remaining LC Liabilities then due and owing.
(b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If If, on any date SuperHoldings, Holdingsdate, the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds from sell, issue or grant options, contingent interest rights, warrants or other rights with respect to any Asset Sale or Recovery Event of its equity securities and, with respect to clause (oriii) below only, in debt securities (any of the event of damage by casualtyforegoing being a "Sale"), the date Borrower shall promptly notify the repair Administrative Agent (which shall promptly notify the Lenders) of such Sale, including the amount of Net Proceeds received by the Borrower or restoration any Subsidiary in respect of such Sale (and the amount and other type of consideration so received) and, subject to the terms of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment DateCollateral Sharing Agreement, an amount equal to the Reinvestment Prepayment Amount with respect to Lender Net Proceeds Portion of such Net Proceeds (or, in the relevant Reinvestment Event case of a Sale of the type referenced in clause (iii) below, the Lender Net Proceeds Portion of forty percent (40%) of such Net Proceeds in excess of $50,000,000) shall be promptly applied as set forth in Section 2.9(d); and provided further, that notwithstanding after the foregoing, receipt from time to time of such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be repay outstanding principal of the Loans (together with any interest accrued thereon). To the extent the Lender Net Proceeds Portion of the Net Proceeds in respect of such Sale as is required to be applied as set forth in Section 2.9(d) until to the date upon which Loans under the aggregate immediately preceding sentence exceeds the amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans then outstanding (together with any interest accrued thereon), or, at the time of such Sale, the Loans shall exceed $1,000,000.
(d) All such amounts described have been paid in Sections 2.9(b) and (c) (full, subject to the terms of the Intercreditor Collateral Sharing Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepaymentNet Proceeds, provided that a notice up to 100% of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.Net
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower Company or any of their respective Subsidiariesits Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.01), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on within five Business Days of the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 2.9(d2.13(c)(iii), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(cii) If on any date SuperHoldings, Holdings, the Borrower Company or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof within five Business Days of the receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d)within ten Business Day following receipt thereof toward the prepayment of the Term Loans; 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 as set forth in Section 2.9(d); toward the prepayment of the Term Loans. For the avoidance of doubt, the parties hereto acknowledge and provided further, agree that notwithstanding the foregoing, such Net Cash Proceeds from the Company’s sale of Xxxxxx May Confections Brands, Inc. (including its subsidiaries, Xxxxxx May Confections, Inc. and Xxxxx London Candies, Inc.), which are not subject would otherwise have been required to be applied to make a Reinvestment Notice prepayment of the Existing Term Loans under the Existing Credit Agreement unless reinvested as provided therein, shall not be required to be applied as set forth in Section 2.9(d) until to prepay the date upon which the aggregate amount of Term Loans and such Net Cash Proceeds received by SuperHoldings, Holdings, shall be deemed to have been reinvested in accordance with the Borrower and their respective Subsidiaries and not previously provisions hereof.
(iii) Amounts to be applied toward in connection with prepayments shall be applied to the prepayment of the Term Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f)2.20. If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (ipursuant to this Section 2.13(c) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under this Section 2.13(c) shall be accompanied by accrued interest to the extent required by date of such prepayment on the amount prepaid. Each prepayment of the Term Loans in accordance with this Section 2.182.13(c) shall be applied to installments thereof in the inverse order of maturity.
Appears in 1 contract
Mandatory Prepayments. (a) In If Borrowers receive Net Cash Proceeds as a result of the event and issuance of any Capital Stock and, at the time of issuance, the Total Leverage Ratio is ³ 2.50 to 1.00, an amount equal to 50% of the Net Cash Proceeds (up to the maximum amount of the Term Loans then outstanding) thereof shall be applied as a prepayment in accordance with Section 2.11(c) within three Business Days of such issuance.
(b) 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 in respect thereof, such Net Cash Proceeds shall be applied on such occasion date toward the prepayment of the Loans as set forth in Section 2.11(c); provided, that:
, notwithstanding the foregoing, (i) the Exposure aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $5,000,000 in any Lender exceeds such Lender’s Revolving Credit Commitment; or
Fiscal Year of the Borrowers and (ii) on each Reinvestment Prepayment Date, an amount equal to the Total Exposure exceeds Reinvestment Prepayment Amount with respect to the lesser relevant Reinvestment Event shall be applied toward the prepayment of the Loans as set forth in Section 2.11(c).
(xc) Total Revolving Credit Commitments Amounts to be applied in connection with prepayments made pursuant to Section 2.11 shall be applied Ratably to the Senior Notes and (ythe Loans, with prepayments to the Loans to be applied, first, to the prepayment of the Term Loan in accordance with Section 2.17(b) and, second, the Borrowing Base; the Borrower shall repay excess, if any, to the Revolving Credit Loans without reduction in the Revolving Commitments, the Swingline Commitment or the L/C Commitments. In addition, any reduction of the Revolving Commitments pursuant to Section 2.09 shall be accompanied by prepayment of the Revolving Loans and/or Swingline Loans to the extent extent, if any, that the Total Revolving Extensions of such excessCredit exceed the amount of the Total Revolving Commitments as so reduced, provided that if the aggregate principal amount of Revolving Credit Loans and Swingline Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower Borrowers shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If . The application of any Indebtedness prepayment pursuant to Section 2.11 shall be incurred by SuperHoldingsmade, Holdingsfirst, the Borrower or any of their respective Subsidiariesto ABR Loans and, an amount equal second, to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the Eurodollar Loans. Each prepayment of the Loans shall exceed $1,000,000.
under Section 2.11 (d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, except in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances Revolving Loans that may be outstanding, pro rata, second to prepay the Swing Line are ABR Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Swingline Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be issued or incurred by SuperHoldingsany Group Member (excluding any Indebtedness incurred in accordance with Section 7.2, Holdings, the Borrower or any of their respective Subsidiariesother than paragraph (g) thereof), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such issuance or incurrence toward the prepayment of such Net Cash Proceeds the Term Loans as set forth in Section 2.9(d2.11(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(cb) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on within three (3) Business Days of such date toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(d); 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 a Reinvestment Notice shall not exceed $5,000,000 in any Fiscal Year of the Borrower and (ii) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(d); and provided further.
(c) If, that notwithstanding for any Fiscal Year of the foregoingBorrower commencing with the Fiscal Year ending February 4, 2007 there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Net Excess Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied Flow toward the prepayment of the Term Loans as set forth in Section 2.9(d2.11(d). Each such prepayment shall be made on a date (an "Excess Cash Flow Application Date") until no later than five days after the earlier of (i) the date upon on which the aggregate amount financial statements of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower 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 their respective Subsidiaries and not previously applied toward (ii) the prepayment of the Loans shall exceed $1,000,000date such financial statements are actually delivered.
(d) All such amounts described Amounts to be applied in Sections 2.9(b) and (c) (subject connection with prepayments made pursuant to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts Section 2.11 shall be applied to the prepayment of the Term Loans in accordance with Section 2.15(f2.17(b). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice pursuant to Section 2.11 shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under Section 2.11 shall be accompanied by accrued interest to the extent required by date of such prepayment on the amount prepaid.
(e) Notwithstanding the foregoing, if, prior to the Tranche C Funding Date, all Tranche B Term Loans shall have been prepaid, then the amount of any mandatory prepayment pursuant to this Section 2.182.11 that would have otherwise been applied to prepay the Tranche B Term Loans shall instead be applied to reduce permanently the Tranche C Term Commitments.
Appears in 1 contract
Mandatory Prepayments. (aA) In Immediately upon the event and on such occasion that:
(i) the Exposure occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser a Change of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; Control, the Borrower shall repay prepay all of the Revolving Credit Loans outstanding Obligations, plus the applicable Prepayment Premium, if any;
(B) Immediately upon the receipt by any Obligor of any Net Proceeds from the incurrence of any Debt (other than Debt permitted to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofbe incurred or issued pursuant to Section 6.3), the Borrower shall, to shall prepay the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount Obligations in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during from such incurrence of Debt plus the applicable Prepayment Premium, if any;
(C) Immediately upon the occurrence of any Cash Dominion Period Permitted Asset Disposition pursuant to clause (c) of the definition thereof, the Borrower agrees to prepay the Obligations in an amount equal to 100% of the Net Proceeds from such Permitted Asset Disposition plus, to the extent applicable, the exit fee pursuant to Item 5 of the Terms Schedule (provided, for the avoidance of doubt, that no Prepayment Premium shall be applied on apply with respect to any prepayment of the date Obligations pursuant to this clause (C));
(D) Immediately upon any Obligor suffering an Event of Loss of any property, the Borrower shall prepay the Obligations in an amount equal to 100% of the Net Proceeds from such Event of Loss plus the applicable Prepayment Premium, if any; provided, that if the Borrower notifies the Agent upon or prior to receipt of such Net Cash Proceeds that the Borrower intends to replace or repair the property in respect of which such Net Proceeds are received, then the Borrower may apply all or any part of such Net Proceeds to such replacement or repair of property, so long as set forth (i) no Event of Default shall have occurred and be continuing, and (ii) such Net Proceeds are actually applied to such replacement or repair within 180 days of receipt (or committed in Section 2.9(dwriting to be so applied within 180 days of receipt and deposited in an escrow account of the Borrower until so applied), and provided, howeverfurther, that to the extent any such Net Proceeds are not actually so applied within the time periods specified in the foregoing requirements clause (ii) or an Event of this paragraph (b) Default shall not apply have occurred and be continuing before such Net Proceeds have been so applied or committed in writing to any Indebtedness incurred in accordance with Section 7.2 as in effect on be applied, then such Net Proceeds shall be immediately applied to prepay the date of this Agreement.Obligations;
(cE) If on any date SuperHoldings, HoldingsUpon the completion of the Initial Public Offering and immediately upon the receipt by Holdings of the net proceeds thereof, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, prepay the Obligations in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to Two Million Three Hundred Seventy-Five Thousand Dollars ($2,375,000.00) plus the Reinvestment applicable Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(dPremium;
(F) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the (E) Each prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject Obligations pursuant to the terms foregoing provisions of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real propertySection 1.2(a)(iv)(A)-(DE) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (1.7; and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
Appears in 1 contract
Samples: Loan Agreement (Heritage Distilling Holding Company, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(iThe(a)(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans Subject to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofSection 2.8(d), the Borrower shallshall use 100% of the Net Proceeds of any sale or disposition by the Borrower or any Subsidiary (other than any Permitted Asset Sale)of any assets, whether effected pursuant to a Division or otherwise or of any Casualty, within fiveten (510 ) Business Days of receipt thereof to make a prepayment of the Term Loans; provided that, prior to the extent payoff in full of the balance DIP Obligations (i) 100% of such excessthe Net Proceeds of any sale or disposition of any Collateral (other than DIP Junior Priority Collateral) shall be applied to prepay the DIP Term Loans pursuant to Section 2.8 of the DIP Credit Agreement and (ii) 100% of the Net Proceeds of any sale or disposition of any assets other than Collateral shall be applied to make a prepayment of the Term Loans and DIP Term Loans on a ratable basis.”. In the event of a Casualty (other than a Casualty described in clause (c) of the definition thereof) of Collateral or of any Specified Aircraft, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Loan Parties (i) shall cause the Net Proceeds to be delivered to the Administrative Agent for as loss payee, and (ii) . In the benefit event of a sale, disposition or Casualty (other than a Casualty described in clause (c) of the Lenders on terms and conditions satisfactory definition thereof), in lieu of making a prepayment under this Section 2.8(a)(i) with respect to the Administrative Agent.
such Casualty, may substitute Collateral (b) If any Indebtedness shall be incurred by SuperHoldingsof sale, Holdingsdisposition or Casualty, the Borrower or any Subsidiary may, upon providing written notice to the Administrative Agent within five (5) Business Days of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of its receipt of such Net Cash Proceeds, elect to reinvest the Net Proceeds of any such sale or disposition in order to substitute such assets sold or disposed of or acquire operating assets used or useful in the business of the Borrower and its Subsidiaries (provided that, to the extent such assets sold or disposed of constituted Collateral, such substituted or acquired assets shall constitute Collateral having the same or better lien priority and perfection) of equal or greater aggregate value as set forth in Section 2.9(d)determined by a methodology mutually agreeable to the Borrower and the Administrative Agent, providedprovided that tangible assets will be replaced with tangible assets and intangible assets will be replaced with intangible assets, however, that within 90180 days (or within a period of 90180 days thereafter if by the foregoing requirements end of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, such initial 90180-day period the Borrower or a Subsidiary shall have entered into an agreement with a third party to acquire such tangible or intangible assets) of such sale, disposition or Casualty. If at the end of any such 90180-day period (or within a period of their respective Subsidiaries 90180 days thereafter if by the end of such initial 90180-day period the Borrower or a Subsidiary shall receive have entered into an agreement with a third party to acquire such tangible or intangible assets), any Net Cash Proceeds from a sale, disposition or Casualty of any Asset Sale Collateral or Recovery Event (orof Specified Aircraft have not been used for prepayment or substitute Collateral providedto acquire assets pursuant to this Section 2.8.(a)(i), in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on to make a partial prepayment of the Term Loans. Upon such date as set forth in Section 2.9(d)a substitution of Collateral; 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of Net Proceeds of any sales or dispositions or Casualty not applied to prepay (or offered to prepay) the Term Loans as to which reinvestment rights may be elected shall not exceed $50,000,000 during the term of this Agreement (it being understood that amounts in excess thereof shall be applied to ratably prepay the Term Loans, subject to Section 2.8(d)). Upon such a reinvestment in order to acquire assets and provided no Event of Default has occurred and is continuing, the Administrative Agent shall promptly deliver to the Borrower or such Loan Partythe applicable Subsidiary the amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the Administrative Agent with respect to such Collateralassets or Specified Aircraft relating to suchany Casualty. Any such prepayment on account of the Term Loans shall exceed $1,000,000.
(dmade under this Section 2.8(a)(i) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionparagraph (c) below.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
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Samples: Credit Agreement (Bristow Group Inc)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) Upon the Exposure consummation of any Lender exceeds Asset-Equity Sale (other than an Excluded Asset Sale or Excluded Equity Issuance), by the Borrower or any Subsidiary, the Net Cash Proceeds of which are (in such Lender’s Revolving Credit Commitmenttransaction or when aggregated with all such other Asset-Equity Sales which are part of a series of related transactions) greater than $10,000,000, within five (5) Business Days after the Borrower's or any of such Subsidiaries' consummation of such Asset-Equity Sale, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to (y) one hundred percent (100%) of such Net Cash Proceeds in the case of Asset-Equity Sales other than in connection with the issuance of Capital Stock and (z) fifty percent (50%) of such Net Cash Proceeds in the case of Asset-Equity Sales consisting of the issuance of Capital Stock; orPROVIDED, if the purchase price for any such Asset-Equity Sale includes any deferred purchase price payments, earnouts or performance based payments which are to be made subsequent to the consummation of such Asset-Equity Sale, the amount of which has not been included in the calculation of Net Cash Proceeds as of the time of the consummation of such Asset-Equity Sale, then within five (5) Business Days after the Borrower's or any of such Subsidiaries' receipt of any such deferred purchase price payments, earnouts or performance based payments, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to one hundred percent (100%) of such deferred purchase price payments, earnouts or performance based payments.
(ii) Within five (5) Business Days after the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred receipt by SuperHoldings, Holdings, the Borrower or any Subsidiary of their respective Subsidiariesany proceeds of Specified Indebtedness, the Borrower shall make or cause to be made a mandatory prepayment in an amount equal to one hundred percent (100% %) of the principal amount of such Specified Indebtedness MINUS all reasonable fees, costs and expenses related to the issuance and placement of such Specified Indebtedness.
(iii) Within five (5) Business Days after the Borrower's or any Subsidiaries' consummation of any Excluded Asset Sale, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to the difference (if a positive number) between: (A) one hundred percent (100%) of the Net Cash Proceeds thereof received during of such Excluded Asset Sale and (B) the lesser of (i) $25,000,000 and (ii) the amount required to be paid in redemption of the Series D Seller Preferred Stock.
(iv) Within five (5) Business Days after the consummation of any Excluded Equity Issuance, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to fifty percent (50%) of the difference (if a positive number) between (a) the Net Cash Dominion Period Proceeds of such Excluded Equity Issuance and (b) the amount paid in redemption or other repurchase of Preferred Stock of the Borrower, or any part thereof. Nothing in this SECTION 2.7(b) shall be construed to constitute the Lenders' consent to any transaction referred to in CLAUSE (i), (ii), (iii) or (iv) above which is not expressly permitted by the terms of this Agreement. Each mandatory prepayment required by CLAUSES (i), (ii), (iii) and (iv) of this SECTION 2.7(b) shall be referred to herein as a "DESIGNATED PREPAYMENT". Designated Prepayments shall be allocated and applied to the Obligations as follows:
(I) the amount of each Designated Prepayment shall be applied to the unpaid installments of the Term Loans on the date of receipt of such Net Cash Proceeds a pro- rata basis; and
(II) except as set forth below, following the payment in Section 2.9(d)full of the Term Loans, provided, however, that the foregoing requirements amount of this paragraph each Designated Prepayment shall be applied to repay Revolving Loans (b) but shall not apply reduce Revolving Loan Commitments) and following the payment in full of the Revolving Loans, the amount of each Designated Prepayment shall be applied first to any Indebtedness incurred in accordance with Section 7.2 as in effect repay outstanding Swing Loans, then to interest on the date Reimbursement Obligations, then to principal on the Reimbursement Obligations, then to fees on account of this Agreement.
(c) If on Facility LCs and then, to the extent any date SuperHoldingsLC Obligations are contingent, Holdingsdeposited with the Administrative Agent as cash collateral in respect of such LC Obligations; PROVIDED, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (orHOWEVER, in the event of damage by casualty, that the date the repair or restoration Borrower fulfills all of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as conditions precedent set forth in Section 2.9(d); 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 SECTIONS 4.1 and 4.2 (provided no Borrowing Notice in connection therewith shall be applied required) as set forth in Section 2.9(d); and provided further, that notwithstanding of the foregoing, date such Net Cash Proceeds which are not Designated Prepayment would be subject to a Reinvestment Notice application under this CLAUSE (II), the proceeds of the remainder of such Designated Prepayment (after the payment in full of the Term Loans) shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received paid by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the as a prepayment of the Revolving Loans, Swing Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to or other Obligations. On the terms of the Intercreditor Agreement, in the case of date any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property Designated Prepayment is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, received by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there such prepayment shall be a period of at least 30 consecutive days during which there are no applied first to Floating Rate Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of and to any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Eurodollar Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, Loans maturing on the date of prepaymentsuch date. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, Except as set forth a reasonably detailed calculation of the amount of such prepaymentin CLAUSE (II) above, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise hold the Lenders remaining portion of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be such Designated Prepayment as cash collateral in an amount interest bearing deposit account and shall apply funds from such account to repay subsequently maturing Eurodollar Rate Loans in order of maturity (which Eurodollar Rate Loans shall continue to accrue interest at the applicable Eurodollar Rate until such repayment has been made). Notwithstanding the foregoing, the Borrower may designate a different application of such Designated Prepayments as between Floating Rate Loans and Eurodollar Loans or among Eurodollar Loans; PROVIDED, that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing Borrower shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.be
Appears in 1 contract
Mandatory Prepayments. (a) In Subsequent to the event Closing Date, unless the Required Lenders and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the US Borrower shall repay the Revolving Credit Loans to the extent of such excessotherwise agree, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the US Borrower or any of their respective Subsidiariesits Subsidiaries shall issue any class of Capital Stock for cash (other than (i) any Capital Stock issued to finance a Permitted Acquisition permitted hereunder, (ii) Capital Stock issued by any Subsidiary pursuant to a capital contribution to such Subsidiary by the US Borrower or any other Subsidiary, (iii) Capital Stock issued to officers, directors or employees as compensation or as part of an incentive program or (iv) Capital Stock issued by the US Borrower to any Affiliate, as determined prior to the making of such capital contribution, of the US Borrower pursuant to a capital contribution to the US Borrower by such Affiliate) or incur any Indebtedness other than any Indebtedness permitted pursuant to subsection 8.2 (other than clause (n) thereof), within five (5) Business Days of the date of such issuance or incurrence, each Borrower shall prepay an amount of its Specified Term Loans equal to 100% its Specified Borrower Percentage of the Equity Prepayment Percentage, in the case of the issuance of any such Capital Stock, or the Debt Prepayment Percentage, in the case of the incurrence of any such Indebtedness, of the Net Cash Proceeds thereof received during as set forth in paragraph (d) of this subsection 2.9; PROVIDED, that if at the time any Capital Stock (other than Capital Stock described in clauses (i) through (iv) above) or Senior Subordinated Notes are issued there are any amounts outstanding under the Interim Loan Agreement, the Net Cash Dominion Period Proceeds from the issuance thereof shall, subject to the subordination provisions of the Interim Loan Agreement, be applied first to prepay such amounts and any remaining amount shall be applied in accordance with the last sentence of subsection 2.9(d).
(b) Unless the Required Lenders and the US Borrower shall otherwise agree, if the US Borrower or any of its Subsidiaries shall consummate any Asset Sale or receive any cash proceeds of any casualty or condemnation, on the date which is twelve months after the date of consummation of such Asset Sale or receipt of such proceeds, each Borrower shall prepay an amount of its Specified Term Loans equal to its Specified Borrower Percentage of the Asset Sale Prepayment Percentage of the Net Cash Proceeds thereof as set forth in paragraph (d) of this subsection 2.9 to the extent that such Net Cash Proceeds as set forth from the Asset Sale or casualty or condemnation event have not been reinvested in Section 2.9(d), provided, however, that the foregoing requirements business of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the US Borrower or any of their respective its Subsidiaries shall receive within twelve months of the date of such Asset Sale or such casualty or condemnation event. Notwithstanding the foregoing, in the event that at the time of consummation of any Asset Sale or the occurrence of any casualty or condemnation event, the Interim Loan Agreement prohibits the Borrowers from so reinvesting the Net Cash Proceeds from any such Asset Sale or Recovery Event (or, in casualty or condemnation event or requires that such Net Cash Proceeds be used to repay the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofInterim Loan, such Net Cash Proceeds shall be applied on such date to the prepayment of the Term Loans as set forth in Section 2.9(dparagraph (d) of this subsection 2.9.
(c) Unless the Required Lenders and the US Borrower shall otherwise agree, if for any fiscal year, commencing with the fiscal year ending December 31, 2000, there shall be Excess Cash Flow for such fiscal year, each Borrower shall prepay an amount of its Specified Term Loans equal to its Specified Borrower Percentage of the ECF Prepayment Percentage of such Excess Cash Flow as set forth in paragraph (d) of this subsection 2.9. Each such prepayment shall be made on or before the date which is seven (7) Business Days after the earlier of (A) the date on which the financial statements referred to in subsection 7.1(a) are required to be delivered to the Lenders and (B) the date on which said financial statements are actually delivered.
(d) Mandatory prepayments of the Term Loans shall be applied (i) PRO RATA to each class or tranche of Term Loans ratably based upon the then outstanding principal amounts of the Term Loans (with each class or tranche of Term Loan to be allocated that percentage of the amount to be applied as is equal to a fraction (expressed as a percentage), the NUMERATOR of which is the then outstanding principal amount of such class or tranche of Term Loans, as the case may be, and the DENOMINATOR of which is equal to the then outstanding principal amount of all Term Loans); provided(ii) to reduce the then remaining installments of such Term Loans ratably based upon the then amounts of such installments of such Term Loans; and (iii) subject to clauses (i) and (ii), thatprepayments shall be applied FIRST to Base Rate Loans and SECOND, notwithstanding PRO RATA, to Eurocurrency Loans, PROVIDED, that in the foregoingevent the mandatory prepayment of any class or tranche of Term Loans as a result of an asset sale or disposition by any Foreign Subsidiary Borrower or any of its Subsidiaries would result in any adverse tax impact to the US Borrower or any other Foreign Subsidiary Borrower, the portion allocable to the Term Loans of each affected Borrower shall instead be applied to the Term Loans of the applicable Foreign Subsidiary Borrower. Amounts prepaid on account of any of the Term Loans may not be reborrowed. Notwithstanding the foregoing but subject to the proviso contained in subsection 2.9(a), the Net Cash Proceeds from the issuance of any Senior Subordinated Notes in excess of the amounts then outstanding under the Interim Loan Agreement shall be applied first to the prepayment of the US Tranche B Term Loans and to the installments thereof in the inverse order of maturity.
(e) Notwithstanding anything to the contrary in subsections 2.9(d) or 4.4, with respect to the amount of any mandatory prepayment described in subsection 2.9 that is allocated to US Tranche B Term Loans (such amount, the "US TRANCHE B PREPAYMENT AMOUNT"), at any time when US Tranche A Term Loans remain outstanding, the relevant Borrower will, in lieu of applying such amount to the prepayment of US Tranche B Term Loans, as provided in paragraph (d) above, on the date specified in subsection 2.9 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Reinvestment US Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the relevant Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment DateOption Notice, which shall be in the form of Exhibit R, and shall include an offer by the relevant Borrower to prepay on the date (each a "MANDATORY PREPAYMENT DATE") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the Reinvestment portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's US Tranche B Term Loans. On the Mandatory Prepayment Date, (i) the relevant Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant US Tranche B Term Loans in respect of which US Tranche B Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the US Tranche B Prepayment Amounts with respect to each Accepting Lender and (ii) the relevant Reinvestment Event Borrower shall pay to the Administrative Agent an amount equal to the portion of the US Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstandingUS Tranche A Term Loans.
(f) The With respect to any Specified Borrower, if at any time the sum of its Specified Revolving Credit Loans, Specified Swing Line Loans and Specified Accommodation Outstandings exceeds the Specified Revolving Credit Commitments (including at any time after any reduction of the Specified Revolving Credit Commitments pursuant to subsection 2.4), the Specified Borrower shall notify the Administrative Agent (and, make a payment in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in excess which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing payment shall be applied ratably to the Loans included in the prepaid Borrowingorder and in the manner set forth in subsection 2.4(b). Prepayments shall be accompanied by accrued interest to To the extent that after giving effect to any prepayment of the Specified Loans required by Section 2.18.the preceding sentence, the sum of the Specified Revolving Credit
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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[reserved].
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesGroup Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such incurrence toward the prepayment of such Net Cash Proceeds the Term Loans and other amounts as set forth in Section 2.9(d2.12(e). Contemporaneously with the prepayment of the Term Loans pursuant to this Section 2.12(b) prior to the first anniversary of the Closing Date, the Borrower shall pay to the Administrative Agent (for the ratable benefit of the Lenders), provided, however, that a prepayment fee equal to 1.00% of the foregoing requirements aggregate amount of this paragraph (b) the Term Loans so prepaid. Any such Term Loan prepayment fee shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect be fully earned on the date paid and shall not be refundable for any reason; provided that in the event that (i) such prepayment occurs as a result of this Agreementa Refinancing and (ii) SVB acts as the sole and exclusive administrative agent and collateral agent for such Refinancing, then any Lender participating in such Refinancing shall not be entitled to any portion of the prepayment premium, and the amount of the total prepayment premium shall be reduced accordingly.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Loans and other amounts as set forth in Section 2.9(d2.12(e); provided, that, notwithstanding the foregoing, provided that on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000and other amounts as set forth in Section 2.12(e).
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion[reserved].
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.12 shall be applied first to the prepayment of installments due in respect of the Term Loans on a pro rata basis and in accordance with Sections 2.3 and 2.18(b) and second to repay outstanding Revolving Loans and Swingline Loans in accordance with Section 2.18(c) (with no corresponding permanent reduction in the Revolving Commitments) (provided that any Term Lender may decline any such prepayment (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; and second, to the extent of any residual, if no Term Loans remain outstanding, to the prepayment of the Revolving Loans and Swingline Loans in accordance with Section 2.18(c) (with no corresponding permanent reduction in the Revolving Commitments). 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 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 agrees that during shall deliver to the period from September 1 through December 31 Administrative ny-2096649 v7 Agent and each Term Lender notice of each calendar year there prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than five (5) Business Days prior to the date such prepayment shall be made (each, a period “Mandatory Prepayment Date”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the aggregate amount of at least 30 consecutive days during which there are no Loans outstandingsuch prepayment and (iii) the options of each Term Lender to (x) decline or accept its share of such prepayment and (y) to 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 three (3) Business Days prior to the Mandatory Prepayment Date.
(f) The Borrower shall notify deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, (i) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least ten (10) days’ prior written notice of such prepayment (and the Administrative Agent (and, in shall promptly provide the case same to each Lender). Each notice of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, prepaid.
(g) No prepayment fee shall be payable in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt respect of any such notice (mandatory prepayments made pursuant to this Section 2.12, other than a notice relating solely pursuant to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.182.12(b).
Appears in 1 contract
Samples: Credit Agreement (Accuray Inc)
Mandatory Prepayments. (a) In Upon the event and on such occasion that:
(i) the Exposure occurrence of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Casualty Event or Asset Sale (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereofnot otherwise permitted by Section 9.09), the Borrower shall, shall make a mandatory prepayment of the Loans in an amount equal to the extent sum of (i) one hundred percent (100%) of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiariesits Subsidiaries with respect to such Asset Sale or insurance proceeds or condemnation awards in respect of such Casualty Event, an as the case may be, (ii) any accrued but unpaid interest on any principal amount equal of the Loans being prepaid and (iii) any applicable Prepayment Fee; provided that, so long as no Default has occurred and is continuing or shall result therefrom, if, within fifteen (15) Business Days following the occurrence of any such Casualty Event or Asset Sale, a Responsible Officer of the Borrower delivers to 100% of the Administrative Agent a notice to the effect that the Borrower or the applicable Subsidiary intends to apply the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt from such Asset Sale or insurance proceeds or condemnation awards in respect of such Net Cash Proceeds as set forth Casualty Event, to reinvest in Section 2.9(d), provided, however, that the foregoing requirements business of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective its Subsidiaries shall receive (a “Reinvestment”), then such Net Cash Proceeds from any of such Asset Sale or Recovery insurance proceeds or condemnation awards in respect of such Casualty Event (ormay be applied for such purpose in lieu of such mandatory prepayment to the extent such Net Cash Proceeds of such Asset Sale or insurance proceeds or condemnation awards in respect of such Casualty Event are actually applied for such purpose; provided, further, that, if such Casualty Event or Asset Sale occurs with respect to any Obligor, such Reinvestment shall be made in the business of an Obligor; provided, further, that, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such that Net Cash Proceeds have not been so applied within three hundred sixty-five (365) days (the “Reinvestment Period”) following the occurrence of such Casualty Event or Asset Sale (or, if the Borrower or any of its Subsidiaries has entered into a binding commitment prior to the last day of such Reinvestment Period to reinvest such proceeds no later than one hundred eighty (180) days following the last day of the Reinvestment Period, one hundred eighty (180) days after the expiry of the Reinvestment Period), the Borrower shall be applied on such date as set forth make a mandatory prepayment of the Loans in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an aggregate amount equal to the Reinvestment Prepayment Amount with respect to sum of (i) one hundred percent (100%) of the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount unused balance of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective any Obligor or any of its Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All with respect to such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any Asset Sale or insurance proceeds or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction awards in the Total Revolving Credit Commitments; provided that during an Event respect of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepaymentCasualty Event, (ii) in any accrued but unpaid interest on any principal amount of the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or Loans being prepaid and (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18applicable Prepayment Fee.
Appears in 1 contract
Samples: Credit Agreement (Athenex, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Lender exceeds Collateral other than Inventory in the Ordinary Course of Business, Borrowers shall repay the Advances in an amount equal to the net proceeds of such Lender’s Revolving Credit Commitment; or
sale (iii.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 one (1) Business Day following receipt of such net proceeds, and until the Total Exposure exceeds 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 lesser of (x) Total Revolving Credit Commitments terms and conditions hereof. Such repayments shall be applied (y) first, to the Borrowing Base; outstanding principal installments of the Term Loan in the inverse order of the maturities thereof and (z) 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. Notwithstanding the foregoing, if any Borrower reasonably expects the proceeds of any disposition of Collateral to be reinvested within one hundred eighty (180) days to repair or replace such assets with like assets, such Borrower shall repay deliver the proceeds to Agent to be applied to the Revolving Credit Loans Advances and Agent shall establish a reserve against available funds for borrowing purposes under the Revolving Advances for such amount until such time as such proceeds have been re-borrowed or applied to other Obligations as set forth herein. If such Borrower so elects to deliver such proceeds to Agent, such Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, reborrow such proceeds only for such repair or replacement. If such Borrower fails to reinvest such proceeds within one hundred eighty (180) days, the extent of such excess, provided that if the aggregate principal amount of Borrowers hereby authorize Agent and Lenders to make a Revolving Credit Loans then outstanding is less than Advance in the amount of such excess (because L/C the remaining reserve to repay the Obligations constitute a portion thereofin the manner set forth in the third sentence of this Section 2.21(a), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness Borrowers shall be incurred by SuperHoldings, Holdings, prepay the Borrower or any outstanding amount of their respective Subsidiaries, the Advances in an amount equal to 100the greater of (x) 25% of Excess Cash Flow or (y) all payments made to the Net holders of Best's Series A Convertible Preferred Stock (the “Excess Cash Proceeds thereof received during Flow Payment Amount”) for each fiscal year commencing on or after January 1, 2008, 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 ninety (90) days after the end of each such fiscal year (each, an “Excess Cash Dominion Period Flow Payment Date”), which amount shall be applied on to the date of receipt of Revolving Advances in such Net Cash Proceeds order as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply Agent may determine subject to any Indebtedness incurred Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. In the event that the financial 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 7.2 2.21(b), subject to adjustment when the financial statement is delivered to Agent as in effect 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 statement. For the avoidance of doubt, it is understood and agreed that no payment of Revolving Advances will be required on any Excess Cash Flow Payment Date to the date extent such amounts have already been applied to reduce the outstanding Revolving Advances as a result of the application of Section 4.15(h) of this Agreement.
(c) If on Best issues any date SuperHoldings, Holdings, Equity Interests to any Person after the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Closing Date, Borrowers shall repay the Advances in an amount equal to 100% of the Reinvestment Prepayment Amount with respect net proceeds received from such issuance (i.e., gross proceeds less the reasonable costs of such issuance) of Equity Interests (excluding any proceeds permitted to be utilized pay fees owing pursuant to the relevant Reinvestment Event Fee Deferral Agreements), such repayments to be made promptly but in no event more than (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 forgoing shall not be deemed to be implied consent to such sale or issuance otherwise prohibited by the terms and conditions hereof. Such repayments shall be applied as set forth to any Revolving Advances then outstanding, subject to Borrowers’ ability to reborrow Revolving Advances in Section 2.9(d); and provided further, that notwithstanding accordance with the terms hereof. Notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice the Borrowers shall not only be required to be applied as set forth in repay Advances pursuant to this Section 2.9(d2.21(c) until the date upon which such time as the aggregate amount of such Net Cash Proceeds net proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds Best from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower Equity Interests (by notice to the Administrative Agent including proceeds received on or prior to the specified dateClosing Date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be greater than 12,000,000, at which time Borrowers shall permitted to retain such proceeds to be utilized in an amount that would be a manner permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18this Agreement.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Hybrook Resources Corp.)
Mandatory Prepayments. (a) In the event and on such On each occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; that a Prepayment Trigger Event occurs, the Borrower shall repay the Revolving Credit Loans give written notice thereof to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for and shall, within two Banking Days after the benefit occurrence of the Lenders on terms and conditions satisfactory such Prepayment Trigger Event, prepay outstanding credit granted to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, Borrower under the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth Credit Facilities in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount relevant Net Cash Proceeds provided that Section 8.4 shall be complied with respect to the relevant Reinvestment Event in connection with any such prepayment. Amounts which are prepaid as aforesaid shall be applied as (x) firstly in respect of the NRT Facility to the scheduled instalments of the NRT Facility set forth in Section 2.9(d); 9.2 in inverse order of maturity and provided furthermay not be reborrowed, (y) secondly in respect of RT Facility 1 and may not be reborrowed and (z) thirdly in respect of RT Facility 2 and may not be reborrowed. As concerns any Bankers’ Acceptances that notwithstanding the foregoing, such Net Cash Proceeds which are not otherwise would be subject to a Reinvestment Notice prepayment pursuant to this Section 9.4, the Borrower shall not be required forthwith upon demand by the Administrative Agent pay to be applied as set forth in Section 2.9(d) until the date upon which Administrative Agent an amount equal to the aggregate face amount of such Net Cash Proceeds received Bankers’ Acceptances, such amount to be held by SuperHoldings, Holdings, the Administrative Agent against any amount owing by the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms relevant Lenders in respect of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, such Bankers’ Acceptances. Any such amount paid to the extent they arise from casualties or losses to equipment, fixtures and real property) Administrative Agent shall be appliedheld on deposit by the Administrative Agent until the maturity date of such Bankers’ Acceptances, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts at which time it shall be applied in accordance with Section 2.15(f). If against the precise amount indebtedness of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject Borrower to the Intercreditor Agreement, by relevant Lenders thereunder. While on deposit with the Administrative Agent, in its Permitted Discretionsuch amount shall bear interest at the rate applicable to short-term deposits.
(e) The Borrower agrees that during the period from September 1 through December 31 ” Reimbursement or Conversion on Presentation of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepaymentLetters and Letters Subject to an Order. Each such notice shall be irrevocable Sections 9.6 and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation 9.7 of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, Credit Agreement are hereby deleted in which case such notice of prepayment may be revoked their entirety and replaced by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.following:
Appears in 1 contract
Samples: Credit Agreement (Yamana Gold Inc)
Mandatory Prepayments. (a) In No later than one (1) Business Day following the event and on such occasion that:
(i) the Exposure date of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred receipt by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% its Subsidiaries of the Net Cash Proceeds thereof received during (i) any Cash Dominion Period shall be applied on the date proceeds of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, sale or disposition by the Borrower or any of their respective its Subsidiaries shall receive Net Cash Proceeds of any of its assets (other than (A) proceeds from the sales of assets in the ordinary course of business and (B) proceeds from other asset sales permitted under Section 7.6) to the extent the proceeds received by the Borrower or any such Subsidiaries with respect to any such sale or disposition of assets exceeds $1,000,000 in the aggregate in any Fiscal Year, or (ii) any proceeds from any Asset Sale casualty insurance policies or Recovery Event (oreminent domain, in the event of damage by casualtycondemnation or similar proceedings, the date Borrower shall prepay the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered Obligations in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, 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 Reinvestment Prepayment Amount with respect Borrower in connection therewith (in each case, paid to non-Affiliates), and net of income taxes reasonably estimated to be actually payable for the taxable year in which the relevant Reinvestment Event shall be applied transaction occurs as set forth a result of any gain recognized in Section 2.9(d)connection therewith; and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice Borrower shall not be required to be applied as set forth 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 2.9(d7.6 and (iii) until proceeds from casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the date upon which the aggregate amount business of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective its Subsidiaries and not previously applied toward the within 180 days following receipt thereof, so long as such proceeds are held in Controlled Accounts at SunTrust Bank. Any such prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount subsection (d) of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretionthis Section.
(eb) The No later than the Business Day following the date of receipt by the Borrower agrees 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, 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 connection therewith (in each case, paid to non-Affiliates); provided that during the period from September 1 through December 31 Borrower shall not be required to prepay the Obligations with respect to proceeds of each calendar year there Indebtedness permitted under Section 7.1. Any such prepayment shall be a period applied in accordance with subsection (d) of at least 30 consecutive days during which there are no Loans outstandingthis Section.
(fc) The Borrower shall notify Commencing with the Administrative Agent (andFiscal Year ending December 31, in the case of prepayment of a Swing Line Loan2019, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not no later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.five
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RadNet, Inc.)
Mandatory Prepayments. (a) In the event Lender actually receives any Net Proceeds relating to an Individual Property, if Lender is not obligated to make such Net Proceeds available to Borrower for the Restoration of any Individual Property or otherwise remit such Net Proceeds to Borrower pursuant to Section 6.4 hereof, on the next occurring Payment Date following the date on which Lender receives such Net Proceeds to be applied in accordance with this Section 2.4.2, Borrower shall prepay or authorize Lender to apply such Net Proceeds Prepayment as a prepayment of all or a portion of the outstanding principal balance of the Loan in an amount equal to the aggregate of (a) the Net Proceeds up to an amount equal to the Adjusted Release Amount for such Individual Property, (b) following a rated Securitization, all Additional Interest and on (c) the actual reasonable costs of Lender in connection with such occasion that:
prepayment to the extent such amounts are not paid to Lender in accordance with Article VI hereof, excluding any Breakage Costs (collectively, the “Mortgage Mandatory Prepayment Amount”). Amounts paid to or applied by Lender as a Mortgage Mandatory Prepayment Amount shall first be applied to amounts required to be paid by Borrower to Lender pursuant to clause (c) above and then to the amounts set forth in clauses (a) and (b) simultaneously. Except during the continuance of an Event of Default, any Net Proceeds Prepayment to be applied pursuant to this Section 2.4.2 hereof in excess of the Mortgage Mandatory Prepayment Amount shall be applied as follows: (i) first, in the Exposure of any Lender exceeds such event that one Mezzanine Loan is outstanding, to Mezzanine Lender’s Revolving Credit Commitment; or
, in an amount equal to the related Mezzanine Mandatory Prepayment Amount, to be applied in accordance with the applicable Mezzanine Loan Documents, (ii) second, in the Total Exposure exceeds event that more than one Mezzanine Loan is outstanding, to Mezzanine Lenders in order of priority beginning with the lesser of (x) Total Revolving Credit Commitments most senior Mezzanine Lender and ending with the most junior Mezzanine Lender, with respect to each Mezzanine Loan in an amount equal to the related Mezzanine Mandatory Prepayment Amount, to be applied in accordance with the applicable Mezzanine Loan Documents, and (yiii) lastly, to Borrower. After the Borrowing Baseoccurrence of and during the continuance of an Event of Default, Lender may apply such Net Proceeds Prepayment to the Debt (until paid in full) in any order or priority in its sole discretion. Other than during the continuance of an Event of Default, no Spread Maintenance Payment or other premium, penalty or charge shall be due in connection with any prepayment made pursuant to this Section 2.4.2. The Amortized Release Amount with respect to such Individual Property shall be reduced in accordance with its definition; provided, that nothing herein shall be construed to reduce the aggregate Adjusted Release Amount for any Individual Property required to be paid to Lender prior to obtaining a release of the applicable Individual Property. Lender shall provide to Borrower, upon ten (10) days’ prior notice, (i) a release of the Individual Property (and any related collateral) if (A) at any time the Amortized Release Amount is reduced to zero, together with such additional documents and instruments evidencing or confirming the release as the Borrower shall repay reasonably request, or (B) Lender is required to deliver such release pursuant to a court order issued in connection with a Condemnation or (ii) a release of the Revolving Credit Loans portion of an Individual Property that is subject to a Condemnation. Notwithstanding anything in this Agreement to the extent of such excesscontrary, provided that if any prepayment made pursuant to this Section 2.4.2(a) shall not count towards the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative AgentFree Prepayment Amount.
(b) If In connection with any Indebtedness release under this Section 2.4.2, in the event that such release would result in the release of all Individual Properties held by an Individual Borrower (each an “Unencumbered Borrower”), such Unencumbered Borrower shall be released by Lender from the obligations of the Loan Documents, except with respect to those obligations that are expressly provided herein to survive repayment of the Loan pursuant to the Loan Documents, and shall no longer be considered an Individual Borrower for purposes of this Agreement and, for so long as any Properties are subject to the Operating Lease, BRE Select Hotels Properties Borrower shall not be released by Lender from the obligations of the Loan Documents. In connection with a release or cancellation of each Unencumbered Borrower, Lender agrees to deliver (i) a UCC-3 Financing Statement termination or amendment releasing Lender’s security interest in the collateral pledged to Lender relating to such Unencumbered Borrower, and (ii) instruments executed by Lender reasonably necessary to evidence the release or cancellation of such Unencumbered Borrower from its obligations under the Loan Documents. All reasonable costs and expenses incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period Lender in connection with such release shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreementpaid by Borrower.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth As provided in Section 2.9(d); provided6.4(f) hereof, that, notwithstanding the foregoing, on each Reinvestment Casualty/Condemnation Prepayment Date, an amount equal tendered by Borrower to the Reinvestment Prepayment Amount Lender in accordance with respect to the relevant Reinvestment Event shall be applied as set forth in said Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property6.4(f) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt Adjusted Release Amount in respect of the proceeds from the issuance of applicable Individual Property. No Spread Maintenance Premium or other Indebtedness penalty or any other event, premium shall be due in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of connection with any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Casualty/Condemnation Prepayment.
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser incurrence of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent Indebtedness of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower Company or any of their respective Subsidiariesits Subsidiaries (other than Indebtedness of the Company or any of its Subsidiaries permitted to be issued under subsection 8.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period of such Indebtedness incurrence shall be applied on the date of receipt such Indebtedness incurrence be applied to the prepayment of such Net Cash Proceeds the Term Loans as set forth in Section 2.9(dsubsection 4.6(d), provided, however, that the foregoing requirements of this paragraph .
(b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on In the date event of this Agreement.
(c) If on any date SuperHoldings, Holdings, receipt by the Borrower Company or any of their respective its Subsidiaries shall receive of Net Cash Proceeds from any Asset Sale or Recovery Event (or, in excess of $5,000,000 in the event aggregate for all Asset Sales and Recovery Events per fiscal year) by the Company or any of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, its Subsidiaries then, unless a the Company exercises its Reinvestment Notice shall be delivered Rights in respect thereof, an amount equal to 100% of the Net Proceeds of such Net Cash Proceeds Asset Sale or Recovery Event shall on the date of such receipt be applied on such date to the prepayment of the Term Loans as set forth in Section 2.9(dsubsection 4.6(d); provided, that, 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans as set forth in subsection 4.6(d).
(c) If, for any fiscal year of the Company commencing with the fiscal year ending December 31, 2011, there shall exceed $1,000,000be Excess Cash Flow, the Company shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow less (y) the aggregate amount of all optional prepayments of Term Loans pursuant to subsection 4.5 made during such fiscal year toward the prepayment of the Term Loans. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten Business Days after the earlier of (i) the date on which the financial statements of the Company referred to in subsection 7.1, 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.
(d) All such amounts described Partial prepayments of the Term Loans pursuant to subsection 4.6 shall be applied first, to the next four installments thereof scheduled to be paid in Sections 2.9(b) direct order, and (c) (second, to the remaining installments on a pro rata basis; provided that 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 Company’s option, as long as no Default or Event of Default has occurred and is continuing, be prepaid subject to the terms provisions of the Intercreditor Agreementsubsection 4.21 or such prepayment (after application to any ABR Loans, in the case of any insurance or condemnation proceeds, to prepayments by the extent they arise from casualties or losses to equipment, fixtures and real propertyCompany) shall be applieddeposited 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 the prepayment of the Eurodollar Loans on the last day of the respective Interest Periods for such Eurodollar Loans next ending most closely to the date of receipt of such Net Proceeds. After such application, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without unless a corresponding reduction in the Total Revolving Credit Commitments; provided that during Default or an Event of DefaultDefault shall have occurred and be continuing, all any remaining interest earned on such amounts cash collateral shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject paid to the Intercreditor Agreement, by the Administrative Agent, in its Permitted DiscretionCompany.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall Except as set forth in subsection 4.21, all payments made under this subsection 4.6 will be a period of at least 30 consecutive days during which there are no Loans outstandingwithout penalty or premium.
(f) The Borrower shall notify Upon the Administrative Agent (andRevolving Credit Termination Date the Company shall, in the case with respect to each then outstanding Letter of prepayment of a Swing Line LoanCredit, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder if any, either (i) in the case cause such Letter of prepayment Credit to be cancelled without such Letter of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, Credit being drawn upon or (ii) in collateralize the case Revolving L/C Obligations with respect to such Letter of prepayment Credit with cash or a letter of credit issued by banks or a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice bank satisfactory to the Administrative Agent on or prior terms reasonably satisfactory to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18Agent.
Appears in 1 contract
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure Following any issuance of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent debt obligations or preferred stock of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower Company or any of their respective Subsidiariesits Subsidiaries (other than Indebtedness of the Company or any of its Subsidiaries permitted to be issued under Section 9.2), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period of such debt or preferred stock issuance shall be applied by the Company on the date of receipt thereof to the prepayment of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements Term Loans. The provisions of this paragraph (bSection 5.6(a) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect one or more issuances of preferred stock of the Company the Net Proceeds of which (i) are deposited on the date of this Agreementreceipt and are retained, until applied in accordance with clause (ii) below, in an account with the Collateral Agent as Collateral for the benefit of the Secured Parties to secure the Obligations over which the Collateral Agent has the sole control and exclusive right of withdrawal (or otherwise are deposited in one or more deposit or securities accounts subject to control agreements legally effective to create a valid and perfected first priority continuing security interest in favor of the Collateral Agent for the benefit of the Secured Parties to secure the Obligations) and (ii) are applied to pay, in whole or in part, the agreed consideration for one or more Permitted Acquisitions.
(cb) If on Subject to paragraph (f) below, following the consummation of any date SuperHoldings, Holdings, Asset Sale by the Borrower Company or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (orits Subsidiaries, in the event case of damage by casualtycash proceeds, the date the repair and following receipt of cash proceeds representing payments under notes or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered other securities received in respect thereof, connection with any non-cash consideration obtained in connection with such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment DateAsset Sale, an amount equal to 100% of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Net Proceeds of such Asset Sale shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding by the Company on the date of receipt thereof to the prepayment of the Term Loans. Notwithstanding the foregoing, if no Default or Event of Default shall have occurred and shall be continuing at the time of such Net Cash Proceeds which are not subject to a Reinvestment Notice Asset Sale or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Proceeds except to the extent that within 360 days of receipt of such proceeds, they have neither been reinvested in productive assets of a kind then used or usable in the business of the Company and its Subsidiaries nor contractually committed (and any such proceeds not applied to such contractual commitments at the time required shall be required deemed to be Net Proceeds to be applied as set forth in Section 2.9(dthis Section) until the date upon to be used for such purposes, at which the aggregate amount of time all such proceeds shall be deemed to be Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000Proceeds.
(d) All such amounts described in Sections 2.9(b) and (c) By April 30 of each year (subject to the terms of the Intercreditor Agreementcommencing April 30, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f2009). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds Company shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the prepay an aggregate principal amount of each Borrowing or portion thereof the Term Loans equal to be prepaid andthe Applicable ECF Percentage of Excess Cash Flow for the immediately preceding fiscal year. As used in this paragraph (c), in the case of a mandatory prepayment, set forth a reasonably detailed calculation term “Applicable ECF Percentage” for any fiscal year means (A) 50.0% if the Secured Leverage Ratio as of the amount last day of and for such prepaymentimmediately preceding fiscal year was equal to or greater than 2.50 to 1.00, provided that a notice of optional prepayment may state that such notice is conditioned upon (B) 25.0% if the receipt Secured Leverage Ratio as of the proceeds from last day of and for such immediately preceding fiscal year was less than 2.50 to 1.00 and equal to or greater than 2.00 to 1.00 and (C) 0.0% if the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders Secured Leverage Ratio as of the contents thereof. Each partial voluntary prepayment last day of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably and for such immediately preceding fiscal year was less than 2.00 to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.181.00.
Appears in 1 contract
Samples: Credit Agreement (Be Aerospace Inc)
Mandatory Prepayments. (a) In If any Capital Stock is issued by the event and on such occasion that:
Borrower (other than the New Equity or any Capital Stock issued to (i) a Subsidiary of the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Borrower, (ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; an employee stock ownership plan or trust established by the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash in a cash collateral account established with the Administrative Agent or any Subsidiary for the benefit of their employees, (iii) employees or directors upon exercise of options pursuant to restricted stock agreements or other equity incentives, or (iv) holders of convertible debt upon conversion thereof), an amount equal to 50% of the Lenders Net Cash Proceeds thereof shall be applied on terms and conditions satisfactory to the Administrative Agentdate of such issuance, incurrence or contribution toward the prepayment of the Loans as set forth in Section 3.2(e).
(b) If any Indebtedness shall be is incurred by SuperHoldings, Holdings, the Borrower or any of their respective SubsidiariesRestricted Subsidiary (other than Excluded Indebtedness), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt such issuance, incurrence or contribution toward the prepayment of such Net Cash Proceeds the Loans as set forth in Section 2.9(d3.2(e), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Restricted Subsidiary shall receive Net Cash Proceeds from any Extraordinary Receipts in excess of $30,000,000 or Net Available Cash from an Asset Sale or Recovery Event (or, in the event excess of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, $30,000,000 then, unless a Reinvestment Notice shall be delivered in respect thereof, such the Net Cash Proceeds or Net Available Cash, as applicable, thereof shall be applied on such date toward the prepayment of the Loans as set forth in Section 2.9(d3.2(e); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans as set forth in Section 3.2(e); provided further that the Net Available Cash from any Asset Sale of the Capital Stock of Spansion (or any holding company parent thereof), the Austin Facility Sale and Leaseback Transaction and any Collateral shall exceed $1,000,000be applied to the prepayment of the Loans within ten Business Days of receipt thereof and shall not be available to be reinvested.
(d) All If, for any fiscal year of the Borrower commencing with the fiscal year ending December 30, 2007, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such amounts described Excess Cash Flow toward the prepayment of the Loans as set forth in Sections 2.9(bSection 3.2(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than five days after the earlier of (i) the date on which the financial statements of the Borrower 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 (cii) (subject the date such financial statements are actually delivered to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted DiscretionLenders.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) application of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loanpursuant to Section 3.2 shall be made, not later than 10:00 A.M.first, New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a to Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Eurodollar Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under Section 3.2 shall be accompanied by accrued interest to the extent date of such prepayment on the amount prepaid. Any prepayment pursuant to Section 3.2 that is required by Section 2.18to be applied to any Eurodollar Loan shall be made on the last day of the Interest Period applicable to such Eurodollar Loan; provided that Borrower shall promptly (and in any event within three Business Days of receipt thereof) deposit such prepayment into a deposit account or securities account over which the Collateral Agent has a perfected security interest and enter into a control agreement satisfactory to the Collateral Agent with respect to such account.
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Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower Company or any of their respective Subsidiariesits Subsidiaries (excluding any Indebtedness incurred in accordance with Section 7.01), an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on within five Business Days of the date of receipt of such Net Cash Proceeds toward the prepayment of the Term Loans as set forth in Section 2.9(d2.13(c)(iii), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(cii) If on any date SuperHoldings, Holdings, the Borrower Company or any of their respective its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofthereof within five Business Days of the receipt of such Net Cash Proceeds, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d)within ten Business Days following receipt thereof toward the prepayment of the Term Loans; 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000Term Loans.
(diii) All such amounts described Amounts to be applied in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts connection with prepayments shall be applied to the prepayment of the Term Loans in accordance with Section 2.15(f)2.20. If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and The application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (ipursuant to this Section 2.13(c) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof made, first, to be prepaid ABR Loans and, in the case of a mandatory prepaymentsecond, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Term Benchmark Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments under this Section 2.13(c) shall be accompanied by accrued interest to the extent required by date of such prepayment on the amount prepaid. Each prepayment of the Term Loans in accordance with this Section 2.182.13(c) shall be applied to installments thereof in the inverse order of maturity.
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Mandatory Prepayments. (a) Not later than the fifth Business Day following the receipt of Net Cash Proceeds in respect 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(g).
(b) In the event and on such each occasion that:
that any Equity Issuance (i) the Exposure of other than any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans Equity Issuances to the extent the Net Cash Proceeds of such excessthe same are used to make permanent repayments or repurchases of Term Loans by the Borrower), provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof)occurs, the Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following), apply an amount equal to 50% of the Net Cash Proceeds therefrom to prepay outstanding Term Loans in accordance with Section 2.13(g) provided, that, with respect to the Net Cash Proceeds of any Equity Issuances, if (x) the Borrower shall deliver a certificate of a Financial Officer to the Administrative Agent at the time of receipt thereof (or promptly thereafter) setting forth the Borrower’s intent to invest such proceeds in Capital Expenditures permitted herein within 6 months of receipt of such proceeds and (y) no Event of Default shall have occurred and shall be continuing at the time of such certificate, the Borrower shall not be required to apply such amounts to the prepayment of the outstanding Term Loans pursuant to this clause (b) except to the extent such proceeds are not so invested or contractually committed to be so invested by the end of such 6 month period, at which time such proceeds shall be applied to the prepayment of the balance outstanding Term Loans pursuant to this clause (b); provided further that (x) if any portion of such excessproceeds are not so used within such 6 month period but within such 6-month period are contractually committed to be used, replace outstanding Letters then upon the termination of Credit and/or deposit an amount in cash in a cash collateral account established with such contract (or if any such proceeds are not so used within 18 months of initial receipt), such remaining portion shall be applied to the Administrative Agent for the benefit prepayment of the Lenders on terms outstanding Term Loans pursuant to this clause (b) as of the earlier of the date of such termination or expiry of such 18-month period and conditions satisfactory (y) such proceeds shall be applied to the Administrative Agentprepayment of the outstanding Term Loans pursuant to this clause (b) notwithstanding any investment notice if there is an Event of Default at the time of a proposed investment unless such proposed investment is made pursuant to a binding commitment entered into at a time when no Event of Default was continuing.
(bc) If any Indebtedness shall be incurred by SuperHoldingsNo later than the earlier of (i) 90 days after the end of each fiscal year of the Borrower, Holdingscommencing with the fiscal year ending on December 31, 2012, and (ii) the date on which the financial statements with respect to such period are delivered pursuant to Section 5.04(a), the Borrower or any of their respective Subsidiaries, shall apply an amount equal to 100% of Excess Cash Flow for the fiscal year then ended to prepay outstanding Term Loans in accordance with Section 2.13(g).
(d) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds thereof received during from the issuance or incurrence of Indebtedness for money borrowed of any Cash Dominion Period shall be applied on Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the date issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the Business Day next following) the receipt of such Net Cash Proceeds as set forth in Section 2.9(d)by such Loan Party or such subsidiary, provided, however, that the foregoing requirements apply an amount equal to 100% of this paragraph (b) shall not apply such Net Cash Proceeds to any Indebtedness incurred prepay outstanding Term Loans in accordance with Section 7.2 as in effect on the date of this Agreement2.13(g).
(ce) If on In the event that any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereofExtraordinary Receipt, such Net Cash Proceeds shall be applied on such date as set forth Loan Party shall, substantially simultaneously with (and in Section 2.9(d); provided, that, notwithstanding any event not later than the foregoing, on each Reinvestment Prepayment Date, an amount equal to Business Day next following) the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount receipt of such Net Cash Proceeds received by SuperHoldingssuch Loan Party, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment apply an amount equal to 100% of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first Net Cash Proceeds to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line outstanding Term Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f2.13(g). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify In the Administrative Agent (andevent that the Borrower, in its sole discretion, determines to permanently reduce the case Collateral Posting Amount other than in connection with the reduction of the commitments under or termination of the Indebtedness incurred pursuant to, Sections 6.01(h) and (i), the Borrower shall, not later than the third Business Day following such determination, apply 100% of the amount of such reduction to the prepayment of a Swing Line Loan, the Swing Line Lenderoutstanding Term Loans in accordance with Section 2.13(g).
(g) by telephone (confirmed by facsimile or by other electronic transmission) Mandatory prepayments of any prepayment hereunder outstanding Term Loans under this Agreement shall be applied (i) in direct order of maturity with respect to the case next four remaining scheduled installments of principal due in respect of the Term Loans under Section 2.11(a) and (ii) pro rata thereafter.
(h) 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 a Eurocurrency Loanthe Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, not later than 10:00 A.M., New York City time, at least three Business Days before the date prior written notice of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and of prepayment shall specify the prepayment date date, the Type of each Term Loan being prepaid and the principal amount of each Borrowing Term Loan (or portion thereof thereof) to be prepaid and, in the case prepaid. All prepayments of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan Borrowings under this Section 2.13 shall be in an amount that would subject to Section 2.16, but shall otherwise be permitted in the case of an advance of a Borrowing of the same Type without premium or penalty (except as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments 2.12(d)), and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the extent required by Section 2.18date of payment.
Appears in 1 contract
Samples: Credit Agreement (Dynegy Inc.)
Mandatory Prepayments. (a) In If the Company or any Subsidiary shall issue new common or preferred equity or any Indebtedness for borrowed money, the Company shall promptly notify the Agent of the estimated Net Issuance Proceeds of such issuance to be received by the Company in respect thereof. Promptly upon, and in no event and on later than 5 Business Days after, receipt by the Company or a Subsidiary of Net Issuance Proceeds of such occasion that:
(i) issuance, the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower Company shall repay prepay the Revolving Credit Loans to the extent of such excess, provided that if the and other Liabilities in an aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt amount of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Issuance Proceeds. Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Issuance Proceeds which are not subject to a Reinvestment Notice arise from the incurrence of purchase money Indebtedness or Capital Lease Obligations shall not be required to be applied as set forth in a prepayment pursuant to this Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,0006.3.
(db) All such amounts described in Sections 2.9(b) and If the Company or any Subsidiary shall enter into any agreement for the sale or disposition of any substantial part of its assets outside the ordinary course of business, the Company shall promptly notify the Agent of the terms thereof, including the estimated Net Sale Proceeds (c) (it being understood that any sale outside of the ordinary course of business of all or any substantial part of the assets of the Company or any Subsidiary is subject to the terms consent of the Intercreditor AgreementRequired Banks pursuant to Section 10.13). Promptly, and in any event within 5 Business Days after receipt by the case Company or any Subsidiary of any insurance or condemnation proceedsthe Net Sale Proceeds of such sale, to the extent they arise from casualties or losses to equipment, fixtures and real property) Company shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction and other Liabilities in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the aggregate principal amount of each Borrowing or portion thereof equal to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation 100% of the amount of such prepaymentNet Sale Proceeds.
(c) Notwithstanding any provision to the contrary in Section 6.3(a) or 6.3(b), provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt Company shall not be obligated to pay over to the Agent any Net Issuance Proceeds or Net Sale Proceeds in excess of the proceeds from aggregate Liabilities then outstanding (it being understood that for this purpose the issuance undrawn amount of other Indebtedness or any other event, Letters of Credit shall constitute Letter of Credit Liabilities and that the amounts prepaid to the Agent in which case respect of such notice Letter of prepayment may Credit Liabilities shall be revoked held by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if as cash collateral for such condition is not satisfied. Promptly following receipt Letter of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders Credit Liabilities).
Section 10.1 3 of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be Agreement is amended to read in an amount that would be permitted in the case of an advance of a Borrowing of the same Type its entirety as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.follows: SECTION
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Mandatory Prepayments. The Loans shall be repaid in the manner provided in Sections 1.9(a) through 1.9(e) below (together with any repayment premium required in accordance with Section 1.8(b)):
(a) In Not later than the event and on such occasion that:
(i) third Business Day following the Exposure completion of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) Specified Asset Disposition or the Total Exposure exceeds the lesser occurrence of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the any Specified Recovery Event, Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to apply 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply with respect thereto to any Indebtedness incurred prepay outstanding Loans in accordance with Section 7.2 as in effect on 1.10; provided that (x) the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Specified Asset Sale Disposition or Specified Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d); 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 as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as provided herein on such date if and to the extent that Borrower delivers an officers’ certificate to the Agent within three Business Days after the date of such Specified Asset Disposition or Specified Recovery Event stating that the Net Proceeds therefrom shall be reinvested in capital assets of Borrower or any of its Subsidiaries in each case within 180 days following the date of such Specified Asset Disposition or such Specified Recovery Event (which certificate shall set forth in Section 2.9(dthe estimates of the proceeds to be so expended), and (y) until the date upon which the aggregate amount if all or any portion of such Net Cash Proceeds received not so applied as provided herein is not allocated to reinvestment in respect of a project that shall have been commenced, and for which binding contractual commitments have been entered into to be completed within 180 days after such 180-day period, prior to the end of such 180-day period, such remaining portion shall be applied on the last day of such period (or if any Net Proceeds allocated to such an investment on such 180th day shall cease to be so allocated or any such contractual commitment shall cease to be in effect and contractually committed or shall not actually have been so expended on or prior to the 180th day following such 180 day period, such remaining portion shall be applied on the date it ceases to be so allocated and contractually committed or on the 181st day following such 180-day period) as specified in this Section 1.9(a); provided, further, that to the extent any such Net Proceeds are applied to a permanent repayment of Indebtedness (with a corresponding reduction in the commitments) permitted by SuperHoldingsSection 3.1(d), Holdingssuch Net Proceeds shall not be required to be applied pursuant to this Section 1.9(a).
(b) In the event that Borrower or any of its Subsidiaries shall receive Net Proceeds from the issuance or other incurrence of Indebtedness by Borrower or any of its Subsidiaries pursuant to Section 3.1(i) in excess of $25,000,000 for all such Indebtedness issued during the term of this Agreement, Borrower shall, substantially simultaneously with (and in any event not later than the third Business Day next following) the receipt of such Net Proceeds by Borrower and their respective Subsidiaries and not previously applied toward or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Loans in accordance with Section 1.10.
(c) In the prepayment event that Borrower’s Leverage Ratio as of the last day of any Excess Cash Flow Period of Borrower exceeds 4.00:1.00, then no later than the earlier of (i) 90 days after the end of such Excess Cash Flow Period, commencing with the Excess Cash Flow Period ending on June 30, 2006, and (ii) the date on which the financial statements with respect to the Fiscal Year ending on the last day of such Excess Cash Flow Period are delivered pursuant to Section 4.4(c), Borrower shall prepay outstanding Loans shall exceed $1,000,000in accordance with Section 1.10, in an aggregate principal amount equal to 50% of Excess Cash Flow for such Excess Cash Flow Period.
(d) All In the event that, without duplication, Borrower shall receive Net Proceeds from any Specified Equity Issuance, Borrower shall, not later than the third Business Day next following the date of receipt of such amounts described Net Proceeds, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Loans in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance or condemnation proceeds, accordance with Section 1.10; provided that to the extent they arise from casualties or losses any such Net Proceeds are applied to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a permanent repayment of Indebtedness (with a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Defaultcommitments) permitted by Section 3.1(d), all such amounts Net Proceeds shall not be required to be applied in accordance with pursuant to this Section 2.15(f1.9(d). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion...
(e) The Borrower agrees that during shall deliver to the period from September 1 through December 31 Agent, at the time of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (andprepayment required under this Section 1.9, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) a certificate signed by a Responsible Officer of Borrower setting forth in reasonable detail the case calculation of the amount of such prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, and (ii) in to the case extent practicable, at least three days’ prior written notice of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of such prepayment. Each such notice shall be irrevocable and of prepayment shall specify the prepayment date and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid and, in prepaid. In the case of a mandatory prepayment, event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth a reasonably detailed calculation in such certificate, Borrower shall promptly make an additional prepayment of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be Loans in an amount that would be permitted in equal to such excess, and Borrower shall concurrently therewith deliver to the case of an advance Agent a certificate of a Borrowing Responsible Officer of Borrower demonstrating the same Type as provided in Section 2.1. Each prepayment derivation of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18such excess.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Penhall International Corp)
Mandatory Prepayments. (a) In Not later than one Business Day following the event and on such occasion that:
completion of (i) any Asset Sale by any HOFV Party (other than an Excluded Asset Sale or the Exposure of any Lender exceeds such Lender’s Revolving Credit Commitment; or
Xxxxxx Pointe Transaction) or (ii) the Total Exposure exceeds occurrence of any Recovery Event in respect of any HOFV Party; provided that with respect to any Recovery Event (or series of related Recovery Events), the lesser Borrowers may elect by written notice to Administrative Agent (and with respect to any Recovery Event (or series of related Recovery Events) resulting in Net Cash Proceeds in excess of $10,000,000, subject to the Administrative Agent’s and GACP II, L.P.’s prior written consent) to use such Net Cash Proceeds to repair or replace or restore the Property subject to such Recovery Event, in which event such Net Cash Proceeds shall be held in the Loan Proceeds Account for any such repair, replacement or restoration; provided further that if a Borrower has not consummated such repair, restoration or replacement on or prior to the earlier of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because L/C Obligations constitute a portion thereof), the Borrower shall, to the extent of the balance of such excess, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, an amount equal to 100% of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of 3-months following receipt of such Net Cash Proceeds as set forth in Section 2.9(d)and (y) the Maturity Date, provided, however, that the foregoing requirements Borrowers shall apply an amount equal to the Required Prepayment Percentage of this paragraph (b) shall not apply the Net Cash Proceeds received with respect thereto to any Indebtedness incurred prepay outstanding Loans in accordance with Section 7.2 as in effect on the date of this Agreement2.11.
(cb) If on On the date any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries HOFV Party shall receive Net Cash Proceeds from the issuance or other incurrence of Indebtedness of any Asset Sale such HOFV Party other than (i) Indebtedness issued pursuant to the PIPE Transaction completed on the date of the HOFV Merger or Recovery Event (orii) Indebtedness permitted pursuant to Section 6.01 (other than any Permitted Loan/Equity Raise or such Indebtedness is under or in connection with the U.S. Department of Homeland Security’s EB-5 Immigrant Investor Program, in the event of damage by casualtyeach case, the date the repair or restoration proceeds of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice which shall be delivered in respect thereof, such Net Cash Proceeds required to prepay the Loans) the Borrowers (or other HOFV Party) shall be applied on such date as set forth in Section 2.9(d); provided, that, notwithstanding the foregoing, on each Reinvestment Prepayment Date, apply an amount equal to the Reinvestment Required Prepayment Amount with respect to the relevant Reinvestment Event shall be applied as set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount Percentage of such Net Cash Proceeds received by SuperHoldingsto prepay outstanding Loans in accordance with Section 2.11; provided that so long as no Default or Event of Default exists and the Xxxxxx Pointe Transaction is consummated on or prior to July 15, Holdings, 2020 the Borrower and their respective Subsidiaries and not previously applied toward the prepayment HOFV Parties may retain 100% of the Loans shall proceeds of any Permitted Loan/Equity Raise in an aggregate amount for all such Permitted Loan/Equity Raise transactions not to exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) On the date of (subject i) any Equity Issuance by any HOFV Party or other equity contribution to either Borrower or any other HOFV Party (excluding the terms Xxxxxx Pointe Transaction, but for the avoidance of doubt including any or Permitted Loan/Equity Raise or issuances under or in connection with the Intercreditor AgreementU.S. Department of Homeland Security’s EB-5 Immigrant Investor Program, in each case, the case proceeds of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) which shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second required to prepay the Swing Line Loans and third Loans) the Borrowers shall apply an amount equal to the Required Prepayment Percentage of such Net Cash Proceeds to prepay the Revolving Credit outstanding Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If 2.11.
(d) On the precise date of the completion of any Sculptor Transaction by any HOFV Party, the Borrowers shall cause the Net Cash Proceeds of the Sculptor Transaction (i.e. the lesser of (i) the actual amount received by the Borrowers and (ii) $33,000,000) to prepay in the outstanding amount of insurance or condemnation proceeds allocable Obligations owed to Inventory as compared to equipment, fixtures Tranche 1 Lender and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject Tranche 2 Lender (including an amount equal to the Intercreditor Agreementaggregate outstanding principal amount of the Tranche 1 Loan and the Tranche 2 Loan, by together with unpaid interest and all other fees and costs (including amounts required to be paid under Section 2.04(e)) in accordance with Section 2.11. For the Administrative Agentavoidance of doubt, in its Permitted Discretionnothing herein should be deemed to be the Lenders’ consent to the Sculptor Transaction or the waiver of any Default or Event of Default that may arise as a result of the Sculptor Transaction.
(e) The Borrower agrees that during On the period from September date on which any of the Xxxxxx Pointe Transaction is consummated and/or announced as completed and/or made effective (or, if earlier, the date of HOFV Merger), the Xxxxxxxxxxxxxx Xxxxx, Xxxxxxx 0 Lender and Tranche 2 Lender shall have received in cash the Xxxxxx Pointe Transaction Prepayment Amount to prepay the outstanding amount of Obligations owed to Tranche 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstandingLender and Tranche 2 Lender in accordance with Section 2.11(b).
(f) The Borrower Borrowers shall notify deliver to the Administrative Agent (andAgent, in at the case time of each prepayment of a Swing Line Loanrequired under this Section 2.10, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) a certificate signed by a Responsible Officer of the Borrowers setting forth in reasonable detail the case calculation of the amount of such prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, and (ii) in to the case of prepayment of a Base Rate Loanextent practicable, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or at least three days prior written notice (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each except that no such notice shall be irrevocable required in connection with prepayments required under clauses (d) and (e) above). Each notice of prepayment shall specify the prepayment date and the principal amount of each Borrowing Loan (or portion thereof thereof) to be prepaid andprepaid, in each case in accordance with Section 2.11. In the case of a mandatory prepayment, event that the Borrowers shall subsequently determine that the actual amount received exceeded the amount set forth a reasonably detailed calculation in such certificate, the Borrowers shall promptly make an additional prepayment of the Loans in accordance with Section 2.11 in an amount of equal to such prepaymentexcess, provided that a notice of optional prepayment may state that such notice is conditioned upon and the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice Borrowers shall concurrently therewith deliver to the Administrative Agent on or prior to a certificate of a Financial Officer demonstrating the specified datederivation of such excess
(g) if such condition is not satisfied. Promptly following receipt of Except as set forth in Section 2.08(b)(i), any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders prepayment or repayment of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest the applicable Exit Fee then due. Failure to make any of the foregoing payments when due shall be an immediate Event of Default under Section 7.01(b)(i) of the Loan Agreement. Notwithstanding anything to the extent contrary, Tranche 3 Lender shall not receive (and shall not be entitled to receive) or retain any mandatory payment, including on account of the Tranche 3 Loan, until the date that is two (2) Business Days after the Tranche 1/Tranche 2 Full Payment Date.”
(e) Section 2.11(a) of the Loan Agreement is amended as follows: reference to “clause (d)” in the second line thereof is replaced with “clauses (d) and/or (e)”.
(f) Section 2.11(b) of the Loan Agreement is amended as follows: reference to “Section 2.10(d)” in the first line thereof is replaced with “Sections 2.10(d) and/or (e)”.
(g) A new Section 6.01(g) is added to the Loan Agreement to read as follows: “Any unsecured Indebtedness issued pursuant to the PIPE Transaction that is consummated and proceeds of which are received on the date of HOFV Merger; provided (i) the applicable HOFV Party that is the obligor (whether as an issuer or a guarantor) under the Indebtedness issued pursuant to the PIPE Transaction will, so long as the Obligations are outstanding, make an election under such Indebtedness that all interest payments due thereunder shall be paid in kind and not in cash, (ii) there shall be no “voluntary” prepayments or redemptions of such Indebtedness in cash that are not mandated or mandatorily required by the terms of the PIPE Transaction documents and (iii) such Indebtedness shall not have a scheduled “maturity date” or scheduled amortization earlier than March 31, 2025.”
(h) A new Section 2.18.6.18 is added to the Loan Agreement to read as follows:
Appears in 1 contract
Samples: Term Loan Agreement (Hall of Fame Resort & Entertainment Co)
Mandatory Prepayments. (ai) [Reserved].
(ii) In the event and on such occasion that:
(i) that the Exposure Borrower or any of its Subsidiaries receives Net Proceeds in respect of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) the Total Exposure exceeds the lesser of (x) Total Revolving Credit Commitments and (y) the Borrowing Base; the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the aggregate principal amount of Revolving Credit Loans then outstanding is less than the amount of such excess (because LPrepayment Asset Sale or any Casualty/C Obligations constitute a portion thereof)Condemnation Event, the Borrower shall, to not later than the extent of fifth Business Day following the balance of such excessreceipt thereof, replace outstanding Letters of Credit and/or deposit an amount in cash 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.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries, apply an amount equal to 100100.0% of (or such lesser amount as is determined pursuant to the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt proviso hereto) of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that to prepay the foregoing requirements outstanding principal amount of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date as set forth in Section 2.9(d)Term Loans; provided, that, notwithstanding the foregoing, prior to any prepayment of the outstanding principal amount of the Term Loans, the Borrower and the Required Lenders will determine, in good faith, an amount of Net Proceeds to be retained by the Borrower to provide the Borrower with adequate operating Liquidity, taking into account the impact of such Prepayment Asset Sale or Casualty/Condemnation Event on the Borrower’s projected Liquidity, with the unretained portion of the Net Proceeds to be applied to prepay the outstanding principal amount of the Term Loans as set forth in this clause (ii).
(iii) In the event that the Borrower or any of its Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01), the Borrower shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day after) the receipt of such Net Proceeds by the Borrower or its applicable Subsidiary, apply an amount equal to 100.0% of such Net Proceeds to prepay the outstanding principal amount of the relevant Term Loans.
(iv) Notwithstanding anything in this Section 2.10(b) to the contrary:
(A) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.10(b)(ii) to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Casualty/Condemnation Event affects the assets of any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited under any applicable law or conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager or member of management of such Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions, for a period not to exceed 12 months from the date of the event or calculation giving rise to such repatriation, required by applicable law to permit such repatriation without violating local law or incurring material tax, regulatory or cost consequences); it being understood that if the repatriation of the relevant affected Net Proceeds, as the case may be, is permitted under the applicable law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, within 365 days following the event giving rise to the relevant Net Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Net Proceeds, as the case may be, and the repatriated Net Proceeds, as the case may be, will be promptly (and in any event not later than five (5) 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 2.10(b) to the extent required herein (without regard to this clause (A)),
(B) the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.10(b)(ii) to the extent that the relevant Net Proceeds are received by any joint venture or other non-Wholly-Owned Subsidiary, in each Reinvestment Prepayment Datecase, for so long as the distribution to the Borrower of such Net Proceeds would be prohibited under the Organizational Documents or joint venture agreements governing such joint venture or other non-Wholly-Owned Subsidiary; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the event giving rise to the relevant Net Proceeds, the relevant joint venture or other non-Wholly-Owned Subsidiary will promptly distribute the relevant Net Proceeds, as the case may be, and the distributed Net Proceeds will be promptly (and in any event not later than five (5) Business Days after such distribution) applied to the repayment of the Term Loans pursuant to this Section 2.10(b) to the extent required herein (without regard to this clause (B)),
(C) if the Borrower determines in good faith in consultation with the Administrative Agent (acting at the Direction of the Required Lenders) that the repatriation to the Borrower of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.10(b)(ii) that are attributable to Foreign Subsidiaries would result in a material Tax liability to the Borrower or any Subsidiary or any of the direct or indirect owners of Capital Stock of the Borrower (including any material withholding Tax or any material tax distribution) (such amount, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.10(b)(ii), as applicable, shall be reduced by the Restricted Amount; it being understood that to the extent that the repatriation of the relevant Net Proceeds attributable to the relevant Foreign Subsidiary would no longer have an adverse tax consequence within the 365-day period following the event giving rise to the relevant Net Proceeds, as the case may be, an amount equal to the Reinvestment Prepayment Amount with respect Net Proceeds, as applicable and to the relevant Reinvestment Event extent available, not previously applied pursuant to this clause (C) shall be promptly applied to the repayment of the Term Loans pursuant to this Section 2.10(b) to the extent required herein (without regard to this clause (C)), and
(D) notwithstanding anything in this Agreement to the contrary, the non-application of any amount required to be prepaid pursuant to Sections 2.10(b)(i) – (iii) as a result of the exceptions set forth in Section 2.9(d); and provided further, that notwithstanding the foregoing, such Net Cash Proceeds which are not subject to a Reinvestment Notice clause (C) above shall not be required to be applied as set forth in Section 2.9(d) until the date upon which the aggregate amount of such Net Cash Proceeds received by SuperHoldings, Holdings, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreement, in the case of any insurance constitute a Default or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all and any such amounts shall remain available for working capital and general corporate purposes of the Loan Parties and their Subsidiaries for so long as such amounts are not required to be applied in accordance with prepaid pursuant to this Section 2.15(f2.10(b). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(ev) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding[Reserved].
(fvi) The Borrower shall notify the Administrative Agent [Reserved].
(and, in the case of prepayment of a Swing Line Loan, the Swing Line Lendervii) by telephone [Reserved].
(confirmed by facsimile or by other electronic transmissionviii) of any prepayment hereunder (iPrepayments made under this Section 2.10(b) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, three Business Days before the date of prepayment, (ii) in the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before the date of prepayment or (iii) in the case of prepayment of a Swing Line Loan, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent as required by Section 2.182.12, but otherwise without premium or penalty.
Appears in 1 contract
Samples: Senior Secured Superpriority Debtor in Possession Credit Agreement (Cano Health, Inc.)
Mandatory Prepayments. (a) In the event and on such occasion that:
(i) the Exposure Following satisfaction of any Lender exceeds such Lender’s Revolving Credit Commitment; or
(ii) required prepayment provisions in respect thereof under the Total Exposure exceeds the lesser of Senior Secured Obligations, and subject to Section 2.04(b)(i)(B), if (x) Total Revolving Credit Commitments and the Borrower or any Subsidiary Disposes of any property, or (y) any Casualty Event occurs, which in the Borrowing Base; aggregate results in the realization or receipt by the Borrower or such Subsidiary of Net Cash Proceeds, the Borrower shall repay the Revolving Credit Loans to the extent of such excess, provided that if the prepay an aggregate principal amount of Revolving Credit Loans then outstanding is less than equal to 100% (such percentage, the amount “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided, that, no such prepayment shall be required pursuant to this Section 2.04(b)(i) with respect to such portion of such excess Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.04(b)(i)(A) (because L/C Obligations constitute a portion thereofwhich notice may only be provided if no Event of Default has occurred and is then continuing).
(A) With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event, at the option of the Borrower, the Borrower shall, to the extent of the balance may reinvest all or any portion of such excess, replace outstanding Letters Net Cash Proceeds in assets useful for its business within twelve (12) months following receipt of Credit and/or deposit such Net Cash Proceeds; provided that (i) so long as an amount in cash in a cash collateral account established with the Administrative Agent for the benefit Event of the Lenders on terms Default shall have occurred and conditions satisfactory to the Administrative Agent.
(b) If any Indebtedness shall be incurred by SuperHoldings, Holdingscontinuing, the Borrower shall not be permitted to make any such reinvestments (other than pursuant to a legally binding commitment that the Borrower entered into at a time when no Event of Default is continuing) and (ii) if any Net Cash Proceeds are not so reinvested by the deadline specified above or if any such Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of their respective Subsidiariesa notice of reinvestment election, an amount equal to 100% the Asset Percentage of the Net Cash Proceeds thereof received during any Cash Dominion Period shall be applied on the date of receipt of such Net Cash Proceeds as set forth in Section 2.9(d), provided, however, that the foregoing requirements of this paragraph (b) shall not apply to any Indebtedness incurred in accordance with Section 7.2 as in effect on the date of this Agreement.
(c) If on any date SuperHoldings, Holdings, the Borrower or any of their respective Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event (or, in the event of damage by casualty, the date the repair or restoration of the relevant Property is completed) and a Cash Dominion Period then exists, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on to the prepayment of the Loans as set forth in this Section 2.04.
(B) On each occasion that the Borrower must make a prepayment of the Loans pursuant to this Section 2.04(b)(i), the Borrower shall, as promptly as reasonably practicable, but in any event within five Business Days after the date of realization or receipt of such Net Cash Proceeds (or, in the case of prepayments required pursuant to Section 2.04(b)(i)(A), as promptly as reasonably practicable, but in any event within five (5) Business Days after the deadline specified therein, or of the date the Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested, as the case may be), make a prepayment, of the principal amount of Loans in an amount equal to the Asset Percentage of such Net Cash Proceeds realized or received.
(ii) Upon the occurrence of a Change of Control, the Borrower shall offer to prepay the aggregate outstanding amount of the Loans at such time in cash, without any premium or penalty (other than as set forth in Section 2.9(d2.04(b)(iii); provided).
(iii) In the event that the Borrower prepays any outstanding Loans pursuant to Section 2.04(a) or (b) or in respect of any repayment of the Loans following an acceleration of the Loans pursuant to Section 9.02, that(A) the Borrower shall pay the Make Whole Premium plus accrued and unpaid interest, notwithstanding if any, if such prepayment occurs on or prior to the foregoing, on each Reinvestment Prepayment second anniversary of the Closing Date, an amount (B) the Borrower shall pay a premium equal to 4.0% of the Reinvestment Prepayment Amount with respect aggregate principal amount of the Facility so prepaid if such prepayment occurs after the second anniversary of the Closing Date and on or prior to the relevant Reinvestment Event third anniversary of the Closing Date and (C) the Borrower shall be applied as set forth in Section 2.9(d); pay a premium equal to 2.0% of the aggregate principal amount of the Facility so prepaid if such prepayment occurs after the third anniversary of the Closing Date and provided further, on or prior to the fourth anniversary of the Closing Date.
(iv) [INTENTIONALLY OMITTED.]
(v) In the event that notwithstanding the foregoing, such Net Cash Proceeds which are Merger does not subject occur prior to a Reinvestment Notice shall not be required to be applied as set forth in Section 2.9(d) until or on the date upon which that is 90 days after the aggregate amount of such Net Cash Proceeds received by SuperHoldings, HoldingsClosing Date, the Borrower and their respective Subsidiaries and not previously applied toward the prepayment of the Loans shall exceed $1,000,000.
(d) All such amounts described in Sections 2.9(b) and (c) (subject to the terms of the Intercreditor Agreementcause, in the case of any insurance or condemnation proceeds, to the extent they arise from casualties or losses to equipment, fixtures and real property) shall be applied, first to prepay any Protective Advances that may be outstanding, pro rata, second to prepay the Swing Line Loans and third to prepay the Revolving Credit Loans without a corresponding reduction in the Total Revolving Credit Commitments; provided that during an Event of Default, all such amounts shall be applied in accordance with Section 2.15(f). If the precise amount of insurance or condemnation proceeds allocable to Inventory as compared to equipment, fixtures and real property is not otherwise determined, the allocation and application of those proceeds shall be determined, subject to the Intercreditor Agreement, by the Administrative Agent, in its Permitted Discretion.
(e) The Borrower agrees that during the period from September 1 through December 31 of each calendar year there shall be a period of at least 30 consecutive days during which there are no Loans outstanding.
(f) The Borrower shall notify the Administrative Agent (and, in the case of prepayment of a Swing Line Loan, the Swing Line Lender) by telephone (confirmed by facsimile or by other electronic transmission) of any prepayment hereunder (i) in the case of prepayment of a Eurocurrency Loan, not later than 10:00 A.M., New York City time, within three Business Days before after such date, to be prepaid, without premium or penalty, an aggregate principal amount of the date outstanding Loans equal to 100% of prepaymentthe Escrow Proceeds. For the avoidance of doubt, (ii) in interest shall accrue on the case of prepayment of a Base Rate Loan, not later than 10:00 A.M., New York City time, one Business Day before Escrow Proceeds until the date of prepayment or (iii) in the case of prepayment of a Swing Line Loanrepayment, not later than 11:00 A.M., New York City time, on the date of prepayment. Each such notice and shall be irrevocable due and shall specify the prepayment date and the principal amount of each Borrowing or portion thereof to be prepaid and, in the case of a mandatory prepayment, set forth a reasonably detailed calculation of the amount of payable on such prepayment, provided that a notice of optional prepayment may state that such notice is conditioned upon the receipt of the proceeds from the issuance of other Indebtedness or any other event, in which case such notice of prepayment may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified date) if such condition is not satisfied. Promptly following receipt of any such notice (other than a notice relating solely to Swing Line Loans) the Administrative Agent shall advise the Lenders of the contents thereof. Each partial voluntary prepayment of any Revolving Credit Loan shall be in an amount that would be permitted in the case of an advance of a Borrowing of the same Type as provided in Section 2.1. Each prepayment of a Borrowing shall be applied ratably to the Loans included in the prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the extent required by Section 2.18.
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