Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). (b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter. (c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 2 contracts
Sources: Credit Agreement (United Online Inc), Credit Agreement (United Online Inc)
Mandatory Prepayments. (ai) Upon No later than the consummation tenth (10th) Business Day after the date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2020, the Borrower shall prepay the outstanding principal amount of Subject Loans in an aggregate principal amount equal to: to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, the sum of (1) the aggregate principal amount of any other Indebtedness that is secured on a pari passu basis with the Secured Obligations that the Borrower voluntarily repays or repurchases during such period and prior to such date, (2) the aggregate principal amount of any Term Loans and/or Revolving Loans prepaid pursuant to Section 2.11(a) during such period and prior to such date (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment), (3) the aggregate principal amount of any Second Lien Term Loans (or any other Indebtedness constituting Second Lien Obligations (as defined in the Closing Date Intercreditor Agreement) optionally prepaid pursuant to Section 2.11(a) of the Second Lien Credit Agreement (or otherwise optionally prepaid, redeemed or repurchased pursuant to any equivalent provision under any other document governing any such other Indebtedness constituting Second Lien Obligations (as defined in the Closing Date Intercreditor Agreement))) during such period and prior to such date and (4) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment to or purchase by Holdings, the Borrower or any Restricted Subsidiary in accordance with Section 9.05(g) of this Agreement in connection with any Dutch Auction during such period and prior to such date and, in the case of this clause (4), based upon the principal amount of Indebtedness subject to the relevant assignment or purchase, minus (C) at the option of the Borrower, the sum of (1) cash payments by the Borrower and its Restricted Subsidiaries during such Excess Cash Flow Period in respect of purchase price holdbacks, earn out obligations, or long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness to the extent such payments are not expensed during such Excess Cash Flow Period or are not deducted in arriving at such Consolidated Net Income to the extent financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries, (2) the amount of Investments (other than Investments in Holdings, the Borrower or any Restricted Subsidiary and other than Investments in Cash or Cash Equivalents) and acquisitions not prohibited by this Agreement made during such Excess Cash Flow Period, to the extent that such Investments and acquisitions were financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries, (3) the amount of Restricted Payments (other than Restricted Investments) paid in cash during such Excess Cash Flow Period not prohibited by this Agreement (other than Restricted Payments made (i) to the Borrower or any Restricted Subsidiary or (ii) pursuant to Section 6.04(a)(iii)(A)), to the extent that such Restricted Payments were financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries, (4) the amount of Capital Expenditures (including acquisitions of intellectual property) made in Cash or accrued during such Excess Cash Flow Period, to the extent that such Capital Expenditures were financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries and (5) without duplication of amounts deducted from Excess Cash Flow in prior periods, (i) the greater aggregate consideration required to be paid in Cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contract commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such Excess Cash Flow Period and (ii) to the extent set forth in a certificate of a Responsible Officer delivered to the Administrative Agent at or before the time the Compliance Certificate for the period ending simultaneously with such Test Period is required to be delivered pursuant to Section 5.01(c), the aggregate amount of cash that is reasonably expected to be paid in respect of planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (i) and (ii), relating to Permitted Acquisitions, other Investments (other than Investments in Cash Equivalents) or Capital Expenditures (including purchases of intellectual property) to be consummated or made within the succeeding 12-month period; provided, that to the extent the aggregate amount of internally generated cash actually utilized to finance such Permitted Acquisitions, Investments or Capital Expenditures during such succeeding 12-month period is less than the Contract Consideration or Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Test Period, in each case, (I) to the extent such payments are made during such Fiscal Year or after the end of such Fiscal Year and prior to the date any payment in respect of Excess Cash Flow would be due under this Section 2.11(b)(i), (II) excluding any such optional prepayment made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year and (III) to the extent that the relevant prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries; provided that no prepayment under this Section 2.11(b)(i) shall be required unless and to the extent the amount thereof would exceed $20,000,000 after giving effect to the calculations and adjustments described in clauses (A) and (B) above.
(ii) No later than the tenth (10th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, the Borrower shall apply an amount equal to the Required Asset Sale Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of the threshold specified in clause (B) of this Section 2.11(b)(ii) (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds (other than Subject Proceeds with respect to any Disposition consummated pursuant to Section 6.07(h)(B)) in the business of the Borrower or any of its subsidiaries (including any acquisition or other Investment permitted hereunder but not in Cash or Cash Equivalents), 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) 50% the Subject Proceeds are so reinvested within 540 days following receipt thereof, or (y) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 540-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 540-day period; it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the net cash proceeds applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso) and (B) the obligation to make a prepayment under this Section 2.11(b)(ii) shall only apply if and to the extent the aggregate amount of (I) Net Proceeds resulting from Prepayment Asset Sales and (II) Net Insurance/Condemnation Proceeds, in each case received by the Borrower in connection with the Classmates IPO and/or any Restricted Subsidiaries (x) for any such single transaction (or related transactions) exceeds $10,000,000 and (y) in any Fiscal Year exceeds $30,000,000 shall 20,000,000 (with only the amount of Net Proceeds exceeding such amount for any single transaction (or related transactions) or in such Fiscal Year to be applied on the date of the Classmates IPO toward the to make a prepayment of the Loans and other amounts as set forth in under this Section 2.6(c2.11(b)(ii)).
(biii) If, for any fiscal quarter of Borrower beginning with In the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, event that the Borrower shallor any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, on except to the extent the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment Indebtedness constitutes (A) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
6.01(p), (cB) Amounts Incremental Loans incurred to be applied in connection with prepayments made refinance all or a portion of the Term Loans pursuant to Section 2.6 shall be applied2.22, (C) Replacement Term Loans incurred to refinance all or any portion of the prepayment 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 the Loans in accordance with the requirements of Section 2.12(b6.01(z)), the Borrower or the relevant Restricted Subsidiary 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 Person, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Term Loans in accordance with clause (iv) 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 Sections 2.11(b)(i) or (ii) above to the extent that the relevant affected Excess Cash Flow is attributable to any Foreign Subsidiary or the relevant Subject Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited, delayed or restricted under any Requirement of 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, member of management or consultant of such Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions available under applicable Requirements of Law to permit such repatriation or to remove such prohibition); it being understood and agreed that if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 540 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, an amount equal to the relevant Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) 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)),
(B) the Borrower 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 Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited, delayed or restricted under the Organizational Documents governing such joint venture; it being understood and agreed that if the relevant prohibition ceases to exist within the 540-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, 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 determines in good faith that the repatriation to the Borrower as a distribution 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 adverse Tax liability (including any withholding Tax) (unless otherwise agreed such amount, a “Restricted Amount”), the amount that the Borrower shall be required to in writing mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by and among Lenders)the Restricted Amount; (provided that any to the extent that the repatriation of the relevant Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 540-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts),
(v) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case the such Declined Amount Proceeds shall be distributed applied to any mandatory prepayment, repurchase or redemption required under the Second Lien Credit Agreement or the documentation governing any other Indebtedness in excess of the Threshold Amount; provided that (A) in the event that any lender under the Second Lien Credit Agreement (or such other Indebtedness) elects to decline receipt of such Declined Proceeds in accordance with the terms of the Second Lien Credit Agreement (or the documentation governing such other Indebtedness), the remaining amount thereof may be retained by the Borrower and (B) that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the prepaymentextent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), on (x) Incremental Loans incurred to refinance all or a pro rata basisportion 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 finance all or a portion of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment in accordance with the requirements of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 26.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Waystar Holding Corp.), First Lien Credit Agreement (Waystar Holding Corp.)
Mandatory Prepayments. (ai) Upon No later than the consummation fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of Holdings are required to be delivered pursuant to Section 5.01(b), commencing with the Classmates IPOFiscal Year ending on or about December 31, 2018, the Borrower shall prepay the outstanding principal amount of Term Loans in accordance with clause (vii) of this Section 2.08(b) below in an aggregate principal amount equal to: :
(iA) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Required Excess Cash Flow Application DatePercentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, apply 50% minus
(B) at the option of the Borrower, without duplication of any amount deducted in calculating Excess Cash Flow for such Excess Cash Flow toward Period and excluding any such payment that reduced the prepayment of amount required to be prepaid pursuant to this Section 2.08(b)(i) in the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “prior Excess Cash Flow Application Date”Period, the aggregate principal amount of,
(1) no later than 45 days after each fiscal quarter end for any Initial Term Loans prepaid pursuant to Section 2.08(a) and Additional Term Loans prepaid that rank pari passu in right of payment and security with the first three fiscal quarters and 90 days Initial Term Loans, solely (to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrower or its Restricted Subsidiaries) prior to such date, and
(2) except to the extent deducted in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition calculation of Excess Cash Flow, the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to such date, in an amount equal to the lesser of the actual amount of cash paid in connection with the relevant assignment and the applicable reduction;
(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, in each case, in excess of (x) $3,500,000 in a single transaction or series of related transactions or (y) the Threshold Amount in any Fiscal Year, the Borrower shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with Section 2.09(e) below; provided that (A) if prior to the date any such prepayment is required to be made, no Event of Default then exists, 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 12 months following receipt thereof, or (y) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 12-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 12-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 the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); 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 repay or repurchase any other Indebtedness (or offer to repay or repurchase any 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 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 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 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 clause (bSection 2.08(b)(ii) for any fiscal quarter shall be reduced on a dollar for dollar basis 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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the amount Borrower or any of optional prepayments its Restricted Subsidiaries (other than Indebtedness that is permitted under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans made pursuant to Section 2.5 during such fiscal quarter.
6.01(m) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c), (cB) Amounts Incremental Loans incurred to be applied in connection with prepayments made refinance all or a portion of the Term Loans pursuant to Section 2.6 shall be applied, 2.19 and/or (C) Incremental Equivalent Debt incurred to the prepayment finance all or a portion of the Loans in accordance with the requirements of Section 2.12(b6.01(s)) the Borrower shall, substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Term Loans in accordance with Section 2.09(e) below.
(iv) Notwithstanding any provision under this Section 2.08(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 Sections 2.08(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by 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 Requirement of 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, member of management or consultant of such Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly 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 affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 or criminal liability for such Persons described above, the Borrower shall be required to mandatorily prepay the Term Loans (net of additional Taxes payable or reserved against as a result thereof) pursuant to this Section 2.08(b) to the extent required herein (without regard to this clause (iv)); and
(B) if the Borrower determines in good faith that the repatriation to the Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.08(b)(i) or (ii) above that are attributable to Foreign Subsidiaries would result in a material and adverse Tax liability (including any withholding Tax) (unless otherwise agreed such amount, a “Restricted Amount”), as reasonably determined by the Borrower, the amount that the Borrower shall be required to in writing mandatorily prepay pursuant to Sections 2.08(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the Borrower the Restricted Amount without incurring such material and among Lenders)adverse Tax liability; (provided that to the extent that the repatriation of any Subject Proceeds or Excess Cash Flow, as the case may be, from the relevant Foreign Subsidiary would no longer have a material and adverse Tax consequence, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (B), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.08(b) as otherwise required above (without regard to this clause (iv)).
(v) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Term Borrower pursuant to this Section 2.08(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount shall be distributed Borrower; provided that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.08(b)(iii) above to the prepaymentextent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(m), on (x) Incremental Loans incurred to refinance all or a pro rata basisportion of the Term Loans pursuant to Section 2.19, (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 finance all or a portion of the Loans held in accordance with the requirements of Section 6.01(s). If any Term Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by Lenders that have elected the Administrative Agent, such failure will be deemed to accept constitute an acceptance of such Declined Amounts. Each Term Lender’s Applicable Percentage of the total amount of such mandatory prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Term Loans.
Appears in 2 contracts
Sources: Term Loan Agreement (Daseke, Inc.), Term Loan Agreement (Daseke, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the greater related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans equal to (xA) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall such percentage as it may be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts reduced as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowdescribed below, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application DateECF Percentage”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, if any, for the amount fiscal year covered by such financial statements (commencing with the first full fiscal year ending after the Closing Date), minus (B) the sum of (1) all voluntary prepayments of Term Loans during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the Parent Borrower’s option, following the last day of such fiscal year and on or prior to such required prepayment date) and (2) all voluntary prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year (and, without duplication of any deduction with respect to be repaid pursuant any other fiscal year, at the Parent Borrower’s option, following the last day of such fiscal year and on or prior to this clause (bsuch required prepayment date) for any fiscal quarter shall be to the extent the Revolving Credit Commitments are permanently reduced on a dollar for dollar basis by the amount of optional prepayments such payments, in the case of Loans made pursuant to Section 2.5 during such fiscal quarter.
each of the immediately preceding clauses (c1) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be appliedand (2), to the extent such prepayments are not funded with the proceeds of Indebtedness or any Cure Amount; provided that (x) the ECF Percentage shall be 25% if the First Lien Senior Secured Leverage Ratio (after giving effect to any prepayment of the Loans after such year as contemplated above in accordance with Section 2.12(bclause (B)) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, as of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable fiscal year covered by such financial statements was less than 4.00:1.00 and greater than or equal to 3.75:1.00 and (y) the ECF Percentage shall be 0% if the First Lien Senior Secured Leverage Ratio (after giving effect to any prepayment of Loans after such year as contemplated above in clause (B)) as of the last day of the fiscal year covered by such financial statements was less than 3.75:1.00.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if following the Closing Date (x) the Parent Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party or pursuant to clause (iv) of the proviso thereto), (e), (f), (g), (i) (except as set forth in the proviso thereto), (j), (k), (n), (o), (p), (q), (r), (s) and (u)), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Parent Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrowers shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), of an aggregate principal amount of Term Loans equal to the percentage represented by the quotient of (x) the Outstanding Amount of Term Loans at such time divided by (y) the sum of the Outstanding Amount of the Term Loans at such time and the amount of any other Indebtedness outstanding at such time that is secured by a Lien ranking pari passu with the Liens securing the Term Loans and requiring a prepayment from such Net Cash Proceeds (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion of such Net Cash Proceeds that the Parent Borrower shall also pay have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing) or (II) until the aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein and not previously applied to such a prepayment exceeds $100,000,000 for any amounts owing pursuant to Section 2single Disposition or series of related Dispositions.
Appears in 2 contracts
Sources: Credit Agreement (Restaurant Brands International Inc.), Credit Agreement (Restaurant Brands International Limited Partnership)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Administrative Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2018, the Borrowers shall prepay the outstanding principal amount of Subject Loans that are Term B Loans in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Administrative Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Administrative Borrower, (x) 50% the aggregate principal amount of (I) any Term Loan and/or any Revolving Loan (and in the case of the net Revolving Loans, to the extent such prepayment is accompanied by a permanent reduction of the applicable Revolving Credit Commitment) prepaid pursuant to Section 2.11(a) prior to such date and (II) any Incremental Equivalent Debt and/or Replacement Debt voluntarily prepaid, repurchased, redeemed or otherwise retired prior to such date and (y) the amount of any reduction in the outstanding principal amount of any Term Loan resulting from any purchase or assignment made in accordance with Section 9.05(f) of this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (y), based upon the actual amount of cash proceeds received by the Borrower paid in connection with the Classmates IPO relevant purchase or assignment and excluding any such optional prepayment, repurchase, redemption or retirement made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (yin the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant Revolving Credit Commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other long term funded Indebtedness (other than revolving Indebtedness) $30,000,000 of the Administrative Borrower or its Restricted Subsidiaries; provided that no prepayment under this Section 2.11(b)(i) shall be applied required unless and to the extent that the amount thereof exceeds $30,000,000; provided, further, that if at the time that any such prepayment would be required, the Administrative Borrower (or any Restricted Subsidiary of the Administrative Borrower) is also required to prepay, repay or repurchase or offer to repurchase any Indebtedness that is secured on a pari passu basis with any Secured Obligation that is secured on a first lien basis pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Administrative Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the date basis of the Classmates IPO toward aggregate outstanding principal amount of the Loans and the relevant Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to such Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to such Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term B Loans in accordance with the terms hereof) to the prepayment of the Term B Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term B Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of such 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 Term B Loans in accordance with the terms hereof.
(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, the Borrowers shall apply an amount equal to the Required Net Proceeds Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of the threshold contained in the proviso to this clause (b)(ii) (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans; provided that (A) if prior to the date any such prepayment is required to be made, the Administrative Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in the business (other amounts than Cash or Cash Equivalents) of the Administrative Borrower or any of its Restricted 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 Proceeds to the extent (x) the Subject Proceeds are so reinvested within 450 days following receipt thereof, or (y) the Administrative Borrower or any of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 450-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 450-day period; it being understood that if the Subject 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 Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder, the Administrative Borrower or any of its Restricted Subsidiaries is required to prepay, repay or repurchase (or offer to repurchase) any 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, repurchase or repayment of such Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and such 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 such Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds required to be allocated to such 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 2.6(c)2.11(b)(ii) shall be reduced accordingly and (2) to the extent the holders of such 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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof; provided, however, the obligation to make a prepayment under this Section 2.11(b)(ii) shall only apply if and to the extent the aggregate amount of Net Proceeds resulting from Prepayment Asset Sales and Net Insurance/Condemnation Proceeds received by the Administrative Borrower and its Restricted Subsidiaries as a result of event giving rise to the relevant prepayment obligations exceeds $100,000,000.
(biii) IfIn the event that the Administrative Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Administrative Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including any Replacement Debt) incurred to refinance all or a portion of any Class of Term Loans pursuant to Section 6.01(p), (B) Incremental 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 Loans in accordance with the requirements of Section 6.01(z), in each case to the extent required by the terms thereof to prepay or offer to repay such Indebtedness), the Borrowers shall, promptly upon (and in any event not later than two Business Days thereafter) the receipt of such Net Proceeds by the relevant Person, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the applicable portion of the relevant Class of Term Loans in accordance with clause (vi) below.
(iv) 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 affected Excess Cash Flow is generated by any Foreign Subsidiary or the relevant Subject Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the Administrative Borrower determines in good faith that the repatriation to the Administrative Borrower of any fiscal quarter such amount would be prohibited or delayed under any Requirement of Borrower beginning Law or conflict with the fiscal quarter ending March 31fiduciary duties of such Foreign Subsidiary’s directors, 2009or result in, there shall 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 (the Administrative Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly 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 affected Excess Cash FlowFlow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the Borrower shall, on relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow Application Dateor Subject Proceeds, apply 50% as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, 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 such Excess Cash Flow or Subject Proceeds 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 (iv)),
(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 Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the Administrative Borrower determines in good faith that the distribution to the Administrative Borrower of such Excess Cash Flow toward or Subject Proceeds would be prohibited under the prepayment Organizational Documents (or any relevant shareholders’ or similar agreement) governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “applicable Excess Cash Flow Application Date”) no Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than 45 days 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)),
(C) 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 Excess Cash Flow is generated by any Foreign Subsidiary that is not a Loan Party or the relevant Subject Proceeds are received by any Foreign Subsidiary that is not a Loan Party, in each fiscal quarter case, for so long as the Administrative Borrower determines in good faith that the distribution to any Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under an agreement permitted pursuant to Section 6.05 by which such Foreign Subsidiary is bound governing any Indebtedness; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end for of the first three fiscal quarters and 90 days in applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the fourth quarter Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(D) if the Administrative Borrower determines in good faith that the repatriation (or other intercompany distribution) to any Borrower as a distribution or dividend of any fiscal year end. Notwithstanding amounts required to mandatorily prepay the foregoing 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 without duplication under adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the definition amount that the Borrowers are required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds or Excess Cash Flow 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 or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the amount of Loans required to be repaid extent available, not previously applied pursuant to this clause (b) for any fiscal quarter D), shall be reduced on a dollar for dollar basis by promptly applied to the amount repayment of optional prepayments of the Term Loans made pursuant to Section 2.5 during such fiscal quarter.2.11(b) as otherwise required above;
(cv) Amounts Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be applied made by the Borrowers pursuant to this 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 connection which case such Declined Proceeds may be retained by the Borrowers; provided that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with prepayments made the Net Proceeds of (w) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of the Term Loans pursuant to Section 2.6 shall be applied6.01(p), (x) Incremental Loans incurred to refinance all or a portion of the prepayment 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 finance all or a portion of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.r
Appears in 2 contracts
Sources: Credit Agreement (Syneos Health, Inc.), Credit Agreement (INC Research Holdings, Inc.)
Mandatory Prepayments. (a) Upon Until the consummation of Rollover Date, if the Classmates IPOBorrower or any Subsidiary receives any Net Cash Proceeds from any Asset Sale, the Borrower shall offer to prepay Loans in an amount equal to: (i) the greater of (x) 50to 100% of such Net Cash Proceeds (in the case of an Asset Sale by a Foreign Subsidiary, net cash proceeds received by of additional taxes payable (or that would be payable if the Borrower Net Cash Proceeds were repatriated to the United States) or reserved against as a result thereof) in connection accordance with Section 2.10(b)(v) on or prior to the Classmates IPO and date which is ten (y10) $30,000,000 shall be applied on Business Days after the date of the Classmates IPO toward realization or receipt of such Net Cash Proceeds; provided that no such offer to make a prepayment shall be required pursuant to this Section 2.10(b)(i)(A) with respect to such Net Cash Proceeds that the prepayment of the Loans and other amounts as set forth Borrower shall reinvest in accordance with Section 2.6(c2.10(b)(i)(B).
(b) IfWith respect to any Net Cash Proceeds realized or received with respect to any Asset Sale, at the option of the Borrower the Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful for the Borrower’s or a Subsidiary’s business within twelve (12) months following receipt of such Net Cash Proceeds; provided that any fiscal quarter of Borrower beginning with such Net Cash Proceeds that are not so reinvested within the fiscal quarter ending March 31, 2009, there applicable time period set forth above shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts applied as set forth in Section 2.6(c). Each such prepayment shall be made on a date 2.10(b)(i)(A) within five (an “Excess Cash Flow Application Date”5) no later than 45 days Business Days after each fiscal quarter the end for the first three fiscal quarters and 90 days in the case of the fourth quarter applicable time period set forth above.
(ii) If a Change in Control occurs, the Borrower shall offer to prepay all Loans within 30 days following the date of such Change in Control.
(iii) The Borrower shall notify the Administrative Agent in writing of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount mandatory prepayment of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to clause (i) of this Section 2.5 during such fiscal quarter.
2.10(b) at least three (c3) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest Business Days prior to the date of such prepayment on and or any prepayment pursuant to clause (iii) of this Section 2.10(c) at least ten (10) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount prepaidof 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.
(iv) Notwithstanding any other provisions of this Section 2.10(b) to the contrary, to the extent that any or all the Net Cash Proceeds of any Asset Sale by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.10(b)(i) (a “Foreign Disposition”) are prohibited or delayed by applicable local Law from being repatriated to the United States, the portion of such Net Cash Proceeds so affected will not be required to be applied to offer to repay Loans at the times provided in this Section 2.10(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as applicable Law will not permit or delays repatriation to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable Law, such repatriation will be promptly effected and such repatriated Net Cash Proceeds 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 Loans pursuant to this Section 2.10(b) to the extent provided herein; provided, however, that if a Eurodollar Loan is prepaid to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition would have material adverse tax consequences, the Net Cash Proceeds so affected may be retained by the applicable Foreign Subsidiary, provided that, in the case of this clause (ii), on any day other than or before the last day date 12 months following the date of the Interest Period applicable theretoreceipt of such Net Cash Proceeds, (x) the Borrower shall also pay apply an amount equal to 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 that would be payable if the Net Cash Proceeds were repatriated to the United States) or reserved against if such Net Cash Proceeds had been repatriated or (y) such Net Cash Proceeds shall be applied to the repayment of Indebtedness of a Foreign Subsidiary.
(v) Each prepayment of Loans pursuant to this Section 2.10(b) shall be offered to the Lenders on a pro rata basis pursuant to procedures satisfactory to the Administrative Agent (it being understood that any amounts owing Lender may decline to participate in any such prepayment).
(vi) Any prepayment of Loans pursuant to this Section 2.10(b) shall be accompanied by (i) accrued interest to the extent required by Section 2.12, (ii) break funding payments to the extent required by Section 2.15 and (iii) in the case of a prepayment pursuant to Section 22.10(b)(ii) following the occurrence of a Demand Failure Event, a premium equal to 1% of the principal amount of the Loans prepaid.
Appears in 2 contracts
Sources: Interim Loan Agreement (Constellation Brands, Inc.), Interim Loan Agreement (Constellation Brands, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (xbut not including any Excess Cash Flow attributable to any period ending prior to the Closing Date), the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Datefor Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, apply 50% of such Excess Cash Flow toward minus (B) at the prepayment option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans and other amounts as set forth in or Additional Revolving Loans prepaid pursuant to Section 2.6(c). Each 2.10(a) prior to such prepayment shall be made on a date (an “Excess Cash Flow Application Date”excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) no later than 45 days after each fiscal quarter end for in the first three fiscal quarters and 90 days prior Fiscal Year) (in the case of any such revolving loans prepaid, to the fourth quarter extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any fiscal year end. Notwithstanding the foregoing and without duplication under the definition Fiscal Year, such percentage of Excess Cash FlowFlow shall be reduced to 25% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 3.50 to 1.00.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $2,500,000 in the aggregate in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b); provided that if prior to the date any such prepayment is required to be repaid pursuant made, the Borrower Representative notifies the Administrative Agent of the Borrowers’ intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Combined Group, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (bii) for in respect of such Net Proceeds or Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 12 months following receipt thereof, or if Holdings, any fiscal quarter Borrower or any of Holdings’ Subsidiaries has committed to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay Term Loans in an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be reduced required hereunder, the Borrowers are required to offer to repurchase any other Indebtedness secured on a dollar for dollar pari passu basis by (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the amount of optional prepayments of Loans made Obligations) pursuant to Section 2.5 during the terms of the documentation governing such fiscal quarter.
Indebtedness with Net Proceeds (csuch Indebtedness (or Refinancing Indebtedness in respect thereof) Amounts required to be applied in connection with prepayments made pursuant offered to Section 2.6 shall be appliedso repurchased, the “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans and Additional Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with OID) at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.12(b2.10(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness repurchased, the declined amount shall promptly (unless and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans and Additional Term Loans in accordance with the terms hereof.
(iii) 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 (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional 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 Holdings or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b).
(iv) Notwithstanding any provision under this Section 2.10(b) to the contrary, (A) any amounts that would otherwise agreed be required to be paid by the Borrowers pursuant to Section 2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the applicable Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow will be promptly (and in writing any event not later than two Business Days after such repatriation) applied (net of additional Taxes (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the Term Loans and Additional Term Loans pursuant to this Section 2.10(b) to the extent provided herein; and (B) if the Borrower Representative determines in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.10(b)(i) or (ii) above would result in adverse Tax consequences, 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 Borrower Representative, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied to the repayment of Indebtedness of the applicable Foreign Subsidiary; provided, further, that to the extent that the repatriation of any Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have an adverse Tax consequence, an amount equal to the Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and among Lenders(y); , shall be promptly applied to the repayment of the Term Loans and Additional Term Loans pursuant to Section 2.10(b) as otherwise required above (provided that any without regard to this clause (iv)).
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to this Section 2.10(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Borrowers and shall be distributed added (without duplication) to the prepaymentcalculation of the Available Amount in accordance with the definition thereof; provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.10(b)(iii) above to the extent constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 2.10(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Term Loans, all accepted prepayments under Section 2.10(b)(i), (ii) or (iii) shall be applied first against the next 6 scheduled installments of principal due in respect of the Term Loans in direct order of maturity until such installments are paid in full and then against remaining scheduled installments of principal due in respect of the Term Loans on a pro rata basis, and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before application to the LIBO Rate Loans.
(vii) In the event and on each Business Day on which the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitments, the Borrowers shall prepay the Revolving Loans or Swingline Loans and/or reduce LC Exposure, in an aggregate amount equal to such excess by taking any of the following actions as it shall determine at its sole discretion: (A) prepayment of Revolving Loans held or Swingline Loans or (B) with respect to such excess LC Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of such Letters of Credit, in each case, in an amount equal to 103% of such excess LC Exposure (but in any event, such payments of Revolving Loans or Swingline Loans and such deposits of Cash or “backstopping” or replacements of Letters of Credit shall in the aggregate be equal to such excess) and pursuant to arrangements (and with “backstop” letter of credit issuers) reasonably acceptable to the applicable Issuing Banks.
(viii) The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under Section 2.10(b)(i), (ii) or (iii), a certificate signed by Lenders that have elected to accept a Responsible Officer of the Borrower Representative setting forth in reasonable detail the calculation of the amount of such Declined Amountsprepayment. Each prepayment such certificate shall specify the Borrowings being prepaid and the principal amount of the Loans under Section 2.6 each Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest to the date as required by Section 2.12. All prepayments of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower Borrowings under this Section 2.10(b) shall also pay any amounts owing pursuant be subject to Section 22.11(e) (in the case of prepayments under clause (iii) above as part of a Repricing Transaction) and Section 2.15, but shall otherwise be without premium or penalty.
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (xbut not including any Excess Cash Flow attributable to any period ending prior to the Closing Date), the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Datefor Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, apply 50% of such Excess Cash Flow toward minus (B) at the prepayment option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans and other amounts as set forth in or Additional Revolving Loans prepaid pursuant to Section 2.6(c). Each 2.10(a) prior to such prepayment shall be made on a date (an “Excess Cash Flow Application Date”excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) no later than 45 days after each fiscal quarter end for in the first three fiscal quarters and 90 days prior Fiscal Year) (in the case of any such revolving loans prepaid, to the fourth quarter extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any fiscal year end. Notwithstanding the foregoing and without duplication under the definition Fiscal Year, such percentage of Excess Cash FlowFlow shall be reduced to 25% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 3.50 to 1.00.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $2,500,000 in the aggregate in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b); provided that if prior to the date any such prepayment is required to be repaid pursuant made, the Borrower Representative notifies the Administrative Agent of the Borrowers’ intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Combined Group, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (bii) for in respect of such Net Proceeds or Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 12 months following receipt thereof, or if Holdings, any fiscal quarter Borrower or any of Holdings’ Subsidiaries has committed to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay Term Loans in an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be reduced required hereunder, the Borrowers are required to offer to repurchase any other Indebtedness secured on a dollar for dollar pari passu basis by (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the amount of optional prepayments of Loans made Obligations) pursuant to Section 2.5 during the terms of the documentation governing such fiscal quarter.
Indebtedness with Net Proceeds (csuch Indebtedness (or Refinancing Indebtedness in respect thereof) Amounts required to be applied in connection with prepayments made pursuant offered to Section 2.6 shall be appliedso repurchased, the “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans and Additional Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with ODD) at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.12(b2.10(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness repurchased, the declined amount shall promptly (unless and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans and Additional Term Loans in accordance with the terms hereof.
(iii) 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 (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans or Additional Term Loans pursuant to Section 6,01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional 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 Holdings or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b).
(iv) Notwithstanding any provision under this Section 2.10(b) to the contrary, (A) any amounts that would otherwise agreed be required to be paid by the Borrowers pursuant to Section 2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the applicable Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow will be promptly (and in writing any event not later than two Business Days after such repatriation) applied (net of additional Taxes (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the Term Loans and Additional Term Loans pursuant to this Section 2.10(b) to the extent provided herein; and (B) if the Borrower Representative determines in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.10(b)(i) or (ii) above would result in adverse Tax consequences, 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 Borrower Representative, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied to the repayment of Indebtedness of the applicable Foreign Subsidiary; provided, further, that to the extent that the repatriation of any Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have an adverse Tax consequence, an amount equal to the Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and among Lenders(y); , shall be promptly applied to the repayment of the Term Loans and Additional Term Loans pursuant to Section 2.10(b) as otherwise required above (provided that any without regard to this clause (iv)).
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to this Section 2.10(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Borrowers and shall be distributed added (without duplication) to the prepayment, on a pro rata basis, calculation of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of Available Amount in accordance with the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaiddefinition thereof; provided, that if further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.10(b)(iii) above to the extent constituting Refinancing Indebtedness incurred to refinance all or a Eurodollar Loan is prepaid on any day other than the last day portion of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing Term Loans or Additional Term Loans pursuant to Section 26.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 2.10(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Term Loans, all accepted prepayments under Section 2.10(b)(i), (ii) or
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (a) Upon Subject to the consummation Intercreditor Agreement, if any Indebtedness shall be issued or incurred by the Borrower or any Group Member (excluding any Indebtedness incurred without violation of the Classmates IPOSection 6.1), an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on within three Business Days after the date of the Classmates IPO such issuance or incurrence toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.5(d).
(b) If on any date the Borrower or any Subsidiary Guarantor shall receive Net Cash Proceeds from (i) prior to the Revolving Facility Obligations Payment Date, any Asset Sale or Recovery Event with respect to Term Facility Priority Collateral or (ii) after the Revolving Facility Obligations Payment Date, any Asset Sale or Recovery Event with respect to any Collateral, then, unless a Reinvestment Notice shall be delivered in respect thereof within ten Business Days after receipt of such proceeds, such Net Cash Proceeds shall be applied at the end of such ten-Business Day period toward the prepayment of the Loans as set forth in Section 2.5(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 Loans as set forth in Section 2.5(d).
(c) If, for any fiscal quarter Fiscal Year of the Borrower beginning commencing with the fiscal quarter Fiscal Year ending March December 31, 20092008, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% the ECF Percentage of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.5(d). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days ten Business Days after each fiscal quarter end the date on which the financial statements of the Borrower referred to in Section 5.1(a), for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash FlowFiscal Year with respect to which such prepayment is made, the amount of Loans are required to be repaid pursuant delivered to this clause the Lenders.
(bd) for The application of any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made prepayment pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be appliedmade, first, to the prepayment of the ABR Loans in accordance with Section 2.12(b) (unless otherwise agreed and, second, to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined AmountsEurodollar Loans. Each prepayment of the Loans under Section 2.6 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 2 contracts
Sources: Term Facility Credit Agreement (Fender Musical Instruments Corp), Term Facility Credit Agreement (Fender Musical Instruments Corp)
Mandatory Prepayments. (a) Upon The Company shall prepay the consummation Term Loans in accordance with clause (c) below:
(i) within ten Business Days of receipt by the Classmates IPOCompany or any of its Subsidiaries of Net Cash Proceeds arising from (A) any Asset Sale permitted under Section 8.4(g) (Sale of Assets) in excess of $250,000,000, in an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received such Net Cash Proceeds in excess of $250,000,000 and (B) any other Asset Sale or any Property Loss Event, in an amount equal to 100% of such Net Cash Proceeds; and
(ii) within ten Business Days of receipt by the Borrower Company or any of its Subsidiaries of Net Cash Proceeds arising from any Debt Issuance (other than any Debt Issuance permitted by this Agreement (other than pursuant to Section 8.1(g)), in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date an amount equal to 100% of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)such Net Cash Proceeds.
(b) If, for If the Net Senior Secured Leverage Ratio as of the last day of any fiscal quarter of Borrower beginning Fiscal Year (commencing with the fiscal quarter ending year ended on or around March 31, 2009, there shall be Excess Cash Flow2007) is greater than 2.5 to 1.0, the Borrower shallCompany shall prepay the Term Loans in accordance with clause (c) below, on within ten Business Days after the relevant delivery of Financial Statements pursuant to Section 6.1(b) (Financial Statements) for such Fiscal Year, in an amount equal to (i) 50% of Excess Cash Flow Application Date, apply 50% of the Company and its Subsidiaries for such Excess Cash Flow toward the Fiscal Year minus (ii) any optional prepayment of Term Loans made pursuant to Section 2.8(b) (Optional Prepayments) in such Fiscal Year.
(c) Subject to the Loans provisions of Section 2.13(g) (Payments and other amounts as set forth in Section 2.6(cComputations). Each such prepayment shall be , any prepayments made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for by the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans Company required to be repaid applied in accordance with this clause (c), except in connection with a Deferred Prepayment Event, shall be applied to repay the outstanding principal balance of the Term Loans, until such Term Loans shall have been prepaid in full. All repayments of the Term Loans made pursuant to this clause (bc) for any fiscal quarter shall be reduced on a dollar for dollar basis by applied to reduce the amount remaining installments of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment outstanding principal amounts of the Term Loans (i) in accordance with Section 2.12(bthe stated order of their maturities for eight quarterly installments and then (ii) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, reduce the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, remaining installments on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, however, that if (A) upon a Eurodollar Loan is prepaid Deferred Prepayment Event, the prepayments required above shall be reduced by the Deferred Prepayment Amount in respect of such Deferred Prepayment Event and (B) on the earlier of (1) the occurrence of an Event of Default and (2) the Deferred Prepayment Date, the remaining balance of such Deferred Prepayment Amount shall be applied as set forth above.
(d) If at any day time, the aggregate principal amount of (i) the Revolving Credit Outstandings exceed the aggregate Revolving Credit Commitments at such time, the Company shall forthwith prepay the Swing Loans first and then the other Revolving Loans then outstanding in an amount equal to such excess or (ii) the Peso Outstandings exceed the aggregate Peso Commitments at such time, the Mexican Borrowers shall forthwith prepay the Peso Swing Loans first and then the Peso Loans then outstanding in an amount equal to such excess; provided, however, that, to the extent such excess results solely by reason of a change in exchange rates, the Borrowers shall not be required to make such prepayment unless the amount of such excess causes the Revolving Credit Outstandings or the Peso Outstandings to exceed the Revolving Credit Commitments or Peso Commitments, as applicable, by more than the last day 105%. If any such excess remains after repayment in full of the Interest Period applicable theretoaggregate outstanding Swing Loans and Revolving Loans, the Borrower Company shall also pay any amounts owing pursuant provide cash collateral for the Letter of Credit Obligations in the manner set forth in Section 9.3 (Actions in Respect of Letters of Credit) in an amount equal to Section 2105% of such excess.
Appears in 2 contracts
Sources: Credit Agreement (Marquee Holdings Inc.), Credit Agreement (Amc Entertainment Inc)
Mandatory Prepayments. (a) Upon Within ten (10) Business Days after the consummation financial statements have been delivered or are required to be delivered pursuant to Section 6.1(a), commencing with the delivery of financial statements in respect of the Classmates IPOFiscal Year ending December 31, 2025, the Borrower shall prepay an aggregate principal amount equal toof Term Loans of no less than the following amount (such amount, the “Required ECF Prepayment Amount”), which amount, if less than zero, shall be deemed to be zero: (i) the greater Applicable ECF Prepayment Percentage of the Excess Cash Flow for the Fiscal Year covered by such financial statements, minus (xii) 50all voluntary prepayments of Term Loans made in the Fiscal Year covered by such financial statements.
(b) If any Indebtedness shall be incurred by Holdings or any Subsidiary of Holdings (excluding Indebtedness permitted to be incurred in Section 7.2), an amount equal to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.6(f).
(bc) IfTo the extent permitted under the WF Credit Agreement or any other Loan Documents (as defined in the WF Credit Agreement), for if on any fiscal quarter date the Loan Parties or any subsidiary of Borrower beginning with any Loan Party shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, to the fiscal quarter ending March 31extent such Net Cash Proceeds are not used to repair, 2009restore or replace the applicable assets within two hundred seventy (270) days (or prior to such date be subject to a binding commitment to reinvest such Net Cash Proceeds within one hundred eighty (180) days following such initial two hundred seventy (270) day period) after receipt thereof, there such Net Cash Proceeds shall be Excess Cash Flow, applied no later than five (5) Business Days after the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% last day of such Excess Cash Flow period toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.6(g). Each ; provided that (i) any such prepayment Net Cash Proceeds intended to be reinvested shall be held in a Deposit Account that is subject to a Control Agreement until such reinvestment is made on and (ii) to the extent any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a date notice of reinvestment election, an amount equal to any such Net Cash Proceeds shall be applied within five (an “Excess 5) Business Days after such determination that such Net Cash Flow Application Date”) Proceeds are no later than 45 days after each fiscal quarter end for longer intended to be or cannot be so reinvested to the first three fiscal quarters and 90 days in the case prepayment of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to as set forth in this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterc).
(cd) If a Change of Control occurs, the Loan Parties shall prepay an amount equal to repay all outstanding Obligations in cash.
(e) [reserved].
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 shall be applied, applied to the prepayment of the Term Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amountsin each case in accordance with Section 2.12(b). Each prepayment of the Term Loans under this Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; providedprepaid and, as required by Section (g) below, the Applicable Premium. The Borrower shall deliver to the Administrative Agent (and the Administrative Agent shall promptly provide the same to each Lender) a written notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.6 by noon not less than five (5) Business Days prior to the date such prepayment shall be made (each, a “Prepayment Date”). Such notice shall set forth (i) the Prepayment Date, (ii) the aggregate amount of such prepayment and (iii) the applicable clause under this Section 2.6 that if such prepayment relates to, and (iv) a Eurodollar Loan is prepaid on any day other than certificate signed by a Responsible Officer setting forth in reasonable detail the last day calculation of the Interest Period applicable thereto, amount of such prepayment or reduction.
(g) No amount of outstanding Term Loans shall be prepaid by the Borrower shall also pay any amounts owing pursuant to Section 22.6(b), (c) or (d) unless the Borrower pays to the Administrative Agent (for the ratable benefit of the Lenders), contemporaneously with the prepayment of such Term Loans, a prepayment fee equal to the Applicable Premium.
(h) No repayment or prepayment of the Term Loans pursuant to this Section shall affect any of the Borrower’s obligations under any Derivative Contracts entered into with respect to the Loans.
Appears in 2 contracts
Sources: Credit Agreement (United Homes Group, Inc.), Credit Agreement (United Homes Group, Inc.)
Mandatory Prepayments. (a) Upon On the consummation day of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received receipt by the Borrower in connection Borrowers or --------------------- any of their Subsidiaries of any Net Proceeds with respect to an Asset Disposition, the Classmates IPO Borrowers shall prepay the Loans (and (y) $30,000,000 such prepayment shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.5(e)) and, after all Loans have been prepaid, make a Cash Collateral Deposit, in an amount equal to 100% of such Net Proceeds; provided that no prepayment shall be required with respect to an Asset -------- ---- Disposition if (i) the consummation of such Asset Disposition would not result in (x) the Operating Cash Flow attributable to the assets subject to such Asset Disposition (based on the most recent financial statements received by the Agent under Section 5.1(a) or (b) at the time of such Asset Disposition) plus (y) the ---- Operating Cash Flow attributable to the assets subject to all prior Asset Dispositions consummated since the Closing Date (based, respectively, on the most recent financial statements received by the Agent under Section 5.1(a) or (b) at the time of such Asset Disposition) exceeding 15% of the Operating Cash Flow of the Borrowers as of the date of such Asset Disposition and (ii) the Net Proceeds of any such Asset Dispositions are used, within one year of such disposition, to invest in assets of the same type and use as those disposed and with respect to which the Lenders shall have a first-priority perfected Lien (subject to Section 6.3). On or prior to the date of any Asset Disposition, the Borrowers agree to provide the Agent with calculations used by the Borrowers in determining the amount of any such prepayment (or in determining that a prepayment is not required) under this Section 2.5(a).
(b) If, for In the event that at the end of any fiscal quarter year of Borrower beginning with the fiscal quarter Borrowers ending March on and after December 31, 2009, 1999 there shall be Excess Cash Flow, the Borrower shall, on the relevant exist Excess Cash Flow Application Datewith respect to such fiscal year, apply then on the date which is ten Business Days after the earlier to occur of (i) the date upon which the audited financial statements of the Borrowers with respect to such fiscal year become available and (ii) the 120th day after the end of such fiscal year, the Borrowers shall prepay the Loans (and such prepayment shall be applied as set forth in Section 2.5(e)) and, after all Loans have been prepaid, make a Cash Collateral Deposit, in an amount equal to 50% of such Excess Cash Flow Flow; provided that no such prepayment shall -------- ---- be required if the Maximum Total Debt Ratio as of the end of such fiscal year is less than 4.50:1. On or prior to the date of any prepayment required by this Section 2.5(b), the Borrowers agree to provide the Agent with the calculations, substantially in the form of Exhibit H hereto, used by the Borrowers in determining the amount of any such prepayment.
(c) If the Borrowers or any of their Subsidiaries receive insurance proceeds or condemnation proceeds with respect to any of their Properties which are not fully applied (or contractually committed pursuant to contract(s) approved by the Agent in its reasonable discretion) toward the prepayment repair or replacement of such damaged or condemned Property within 90 days of the receipt thereof, the Borrowers shall, on such 90th day prepay the Loans and, after all Loans have been prepaid, make a Cash Collateral Deposit, in an amount equal to the amount of such proceeds not so applied (and other amounts such prepayment shall be applied as set forth in Section 2.6(c2.5(e). Each ).
(d) In the event that the Borrowers or any of their Subsidiaries makes an Equity Offering during any period in which a Default has occurred and is continuing, the Borrowers shall immediately prepay the Loans and, after all Loans have been prepaid, make a Cash Collateral Deposit, in an amount equal to the Net Proceeds of such Equity Offering (and such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for applied as the first three fiscal quarters Agent shall elect in its sole discretion). No such prepayment shall limit or restrict the rights and 90 days in the case remedies of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication Lenders under the definition Loan Documents upon the occurrence and during the continuance of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterDefault.
(ci) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under pursuant to this Section 2.6 2.5 shall be applied to the outstanding amounts of Incremental Loans and Revolving Loans on a pro rata basis determined on the basis of the amount of Incremental Loans, on the one hand, and Revolving Loans, on the other hand, outstanding at the time of such prepayment. Each prepayment shall be accompanied by payment in full of all accrued interest and accrued commitment fees thereon to and including the date of such prepayment on the amount prepaid; providedprepayment, that if a Eurodollar Loan is prepaid on together with any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any additional amounts owing pursuant to Section 22.15.
(i) If, at any time, the Revolving Loans are repaid in full, additional prepayments hereunder shall be applied first, to make a Cash ----- Collateral Deposit and
Appears in 2 contracts
Sources: Credit Agreement (Entravision Communications Corp), Credit Agreement (Entravision Communications Corp)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrowers are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 31, 2016 (xbut not including any Excess Cash Flow attributable to any period ending prior to the Closing Date)2018, the Borrowers shall prepay the outstanding Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b) in an aggregate principal amount equal to (A) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Datefor Holdings and its Subsidiaries on a consolidated basis for the Fiscal Year then ended, apply 50% of such Excess Cash Flow toward minus (B) at the prepayment option of the Borrowers, the aggregate principal amount of any Term Loans, Additional Term Loans, Revolving Loans and other amounts as set forth in or Additional Revolving Loans prepaid pursuant to Section 2.6(c). Each 2.10(a) prior to such prepayment shall be made on a date (an “Excess Cash Flow Application Date”excluding any such optional prepayments made during such Fiscal Year that were deducted from the amount required to be prepaid pursuant to this Section 2.10(b)(i) no later than 45 days after each fiscal quarter end for in the first three fiscal quarters and 90 days prior Fiscal Year) (in the case of any such revolving loans prepaid, to the fourth quarter extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness of the Borrowers or their Subsidiaries); provided that with respect to any fiscal year end. Notwithstanding the foregoing and without duplication under the definition Fiscal Year, such percentage of Excess Cash FlowFlow shall be reduced to 25% or 0% of Excess Cash Flow if the Total Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 3.50 to2.25:1.00 or 1.50:1.00, respectively.
(ii) No later than the fifth Business Day following the receipt by Holdings or any Subsidiary of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $2,500,000 in the aggregate in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b); provided that if prior to the date any such prepayment is required to be repaid pursuant made, the Borrower Representative notifies the Administrative Agent of the Borrowers’ intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Combined Group, then so long as no Event of Default then exists, the Borrowers shall not be required to make a mandatory prepayment under this clause (bii) for in respect of such Net Proceeds or Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within 12 months following receipt thereof, or if Holdings, any fiscal quarter Borrower or any of Holdings’ Subsidiaries has committed to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay Term Loans in an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be reduced required hereunder, the Borrowers are required to offer to repurchase any other Indebtedness secured on a dollar for dollar pari passu basis by (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the amount of optional prepayments of Loans made Obligations) pursuant to Section 2.5 during the terms of the documentation governing such fiscal quarter.
Indebtedness with Net Proceeds (csuch Indebtedness (or Refinancing Indebtedness in respect thereof) Amounts required to be applied in connection with prepayments made pursuant offered to Section 2.6 shall be appliedso repurchased, the “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans and Additional Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with OID) at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.12(b2.10(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness repurchased, the declined amount shall promptly (unless and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans and Additional Term Loans in accordance with the terms hereof.
(iii) 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 (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional 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 Holdings or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.10(b).
(iv) Notwithstanding any provision under this Section 2.10(b) to the contrary, (A) any amounts that would otherwise agreed be required to be paid by the Borrowers pursuant to Section 2.10(b)(i) or (ii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary, as the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the applicable Borrower agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow will be promptly (and in writing any event not later than two Business Days after such repatriation) applied (net of additional Taxes (including any Tax Distributions) payable or reserved against as a result thereof) to the repayment of the Term Loans and Additional Term Loans pursuant to this Section 2.10(b) to the extent provided herein; and (B) if the Borrower Representative determines in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans and Additional Term Loans pursuant to Section 2.10(b)(i) or (ii) above would result in adverse Tax consequences, 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 Borrower Representative, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.10(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such adverse Tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.10(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrowers rather than such Foreign Subsidiary, less the amount of additional Taxes (including any Tax Distributions) that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance Condemnation Proceeds shall be applied to the repayment of Indebtedness of the applicable Foreign Subsidiary; provided, further, that to the extent that the repatriation of any Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have an adverse Tax consequence, an amount equal to the Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and among Lenders(y); , shall be promptly applied to the repayment of the Term Loans and Additional Term Loans pursuant to Section 2.10(b) as otherwise required above (provided that any without regard to this clause (iv)).
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans and Additional Term Loans required to be made by the Borrowers pursuant to this Section 2.10(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Borrowers and shall be distributed added (without duplication) to the prepaymentcalculation of the Available Amount in accordance with the definition thereof; provided, further, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.10(b)(iii) above to the extent constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified by the Administrative Agent, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 2.10(b) shall be applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Term Loans, all accepted prepayments under Section 2.10(b)(i), (ii) or (iii) shall be applied first against the next 6 scheduled installments of principal due in respect of the Term Loans in direct order of maturity until such installments are paid in full and then against remaining scheduled installments of principal due in respect of the Term Loans on a pro rata basis, and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or LIBO Rate Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before application to the LIBO Rate Loans.
(vii) In the event and on each Business Day on which the Aggregate Revolving Credit Exposure exceeds the Total Revolving Credit Commitments, the Borrowers shall prepay the Revolving Loans or Swingline Loans and/or reduce LC Exposure, in an aggregate amount equal to such excess by taking any of the following actions as it shall determine at its sole discretion: (A) prepayment of Revolving Loans held or Swingline Loans or (B) with respect to such excess LC Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of such Letters of Credit, in each case, in an amount equal to 103% of such excess LC Exposure (but in any event, such payments of Revolving Loans or Swingline Loans and such deposits of Cash or “backstopping” or replacements of Letters of Credit shall in the aggregate be equal to such excess) and pursuant to arrangements (and with “backstop” letter of credit issuers) reasonably acceptable to the applicable Issuing Banks.
(viii) The Borrower Representative shall deliver to the Administrative Agent, at the time of each prepayment required under Section 2.10(b)(i), (ii) or (iii), a certificate signed by Lenders that have elected to accept a Responsible Officer of the Borrower Representative setting forth in reasonable detail the calculation of the amount of such Declined Amountsprepayment. Each prepayment such certificate shall specify the Borrowings being prepaid and the principal amount of the Loans under Section 2.6 each Borrowing (or portion thereof) to be prepaid. Prepayments shall be accompanied by accrued interest to the date as required by Section 2.12. All prepayments of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower Borrowings under this Section 2.10(b) shall also pay any amounts owing pursuant be subject to Section 22.11(e) (in the case of prepayments under clause (iii) above as part of a Repricing Transaction) and Section 2.15, but shall otherwise be without premium or penalty.
Appears in 2 contracts
Sources: Credit Agreement (Osmotica Pharmaceuticals PLC), Credit Agreement (Osmotica Pharmaceuticals LTD)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) CommencingWith respect to the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If2024 Term Loans, for any fiscal quarter of Borrower beginning commencing with the fiscal quarter year of the Borrower ending March 31on or around August 1, 200920202024, there shall be Excess Cash Flowwithin five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) for such fiscal year, the Borrower shall, on if the relevant Excess Cash Flow Application Dateof the Borrower and the Restricted Subsidiaries is greater than $10,000,000, apply 50cause to be prepaid an aggregate principal amount of Term Loans equal to (A) 75% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of $10,000,000, if any, for the fiscal year covered by such financial statements, minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary in an amount equal to the amount actually paid in respect thereof) of Term Loans, Refinancing Loans in the form of term loans and Permitted Alternative Incremental Facilities Debt in the form of term loans or notes, in each case to the extent such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow toward the payment (excluding any prepayment of the 2018 Term Loans made in connection with the Amendment No. 4 Transactions) and (2) all voluntary prepayments of the ABL Facility, Incremental Revolving Loans, Refinancing Loans in the form of revolving loans or any other amounts revolving credit facility refinancing, replacing or extending any of the foregoing, during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow payment to the extent the commitments under the ABL Facility or other revolving credit facility, as set forth applicable, are permanently reduced by the amount of such payments (except with respect to voluntary prepayments of the ABL Facility the proceeds of which were used to fund any increase to the upfront fees or original issue discount arising in connection with the primary syndication of the Initial Term Loans (any voluntary prepayments, made following the fiscal year-end but prior to the making of such prepayment under this clause (B), an “After Year-End Payment”), except, in the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with the proceeds of long-term Indebtedness (other than revolving loans); provided that (x) the ECF Percentage shall be reduced to 50% if the Consolidated First Lien Net Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.50:1.00 and greater than or equal to 3.00:1.00, (y) the ECF Percentage shall be reduced to 25% if the Consolidated First Lien Net Leverage Ratio for the fiscal year (subject to #98202018v27 the following proviso) covered by such financial statements was less than 3.00:1.00 and greater than or equal to 2.50:1.00 and (z) the ECF Percentage shall be reduced to 0% if the Consolidated First Lien Net Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 2.50:1.00; provided further, to the extent so elected by the Borrower, following the making of any After Year-End Payment, (i) the Consolidated First Lien Net Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Payment as if payment was made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated Consolidated First Lien Net Leverage Ratio and (ii) such After Year-End Payment shall not be applied to the calculation of the Consolidated First Lien Net Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow prepayment.
(ii) (A) Subject to Section 2.6(c2.05(b)(ii)(B). Each , if following the Closing Date (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets, including any Sale Leaseback that constitutes a Disposition (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party, or pursuant to clause (iii) of the proviso thereto), (e), (f), (g), (j), (k), (n), (o), (p), (r) (with respect to clause (i) thereof, the Net Cash Proceeds of any such Specified Disposition are not subject to this Section 2.05(b)(ii) solely to the extent that such Net Cash Proceeds are applied to reduce outstanding pension liabilities on a dollar-for-dollar basis) and (s)) or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or any Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Term Loans equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be made required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on a date or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B) (an “Excess which notice may be provided only if no Specified Event of Default has occurred and is then continuing) or (II) until the aggregate amount of Net Cash Flow Application Date”Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) no later than 45 days after each fiscal quarter end for within the first three fiscal quarters and 90 days time periods set forth therein exceeds $10,000,000 in the case of the fourth quarter of aggregate during any fiscal year end. Notwithstanding the foregoing (and without duplication under the definition thereafter only amounts in excess of Excess Cash Flow, the amount of Loans such thresholdsthreshold shall be required to be repaid prepaid) and (2) if at the time that any such prepayment would be required, the Borrower or any of the Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with the Liens securing the Obligations pursuant to this clause the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (b) for any fiscal quarter shall such Indebtedness required to be reduced offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a dollar for dollar pro rata basis by (determined on the basis of the aggregate outstanding principal amount of optional prepayments of the Term Loans made pursuant to Section 2.5 during and Other Applicable Indebtedness at such fiscal quarter.
(ctime) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly,; provided that (a) the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.12(bthe terms hereof and (b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may the extent the holders of Other Applicable Indebtedness decline any to have such prepayment (collectivelyindebtedness repurchased or prepaid, the “Declined Amount”), declined amount #98202018v27 shall promptly (and in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to any event within five (5) Business Days after the date of such prepayment on rejection) be applied to prepay the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than Term Loans in accordance with the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2terms hereof.
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Mandatory Prepayments. (a) Upon The Company shall prepay the consummation of the Classmates IPO, an amount Loans in amounts equal to: :
(i) the greater of (x) 50100% of the net cash proceeds received of all asset sales or other dispositions (except sales of Inventory and surplus or obsolete assets in the ordinary course of business that do not prejudice the Lenders in any material way and dispositions permitted under subparagraphs (a)-(f) of Section 8.02) generating net after-tax proceeds individually or in the aggregate in excess of $1,000,000 per annum by the Borrower in connection with Company or any of its Subsidiaries (such prepayment to be made on or before the Classmates IPO and (y) $30,000,000 shall be applied on fifth day following the date day of the Classmates IPO toward receipt of such proceeds by the prepayment Company or any of its Subsidiaries);
(ii) 100% of the Loans and other amounts as set forth net cash proceeds of all sale/leaseback transactions by the Company, the Parent or any of their respective Subsidiaries in Section 2.6(cthe aggregate in excess of $1,000,000 per annum (such prepayment to be made on or before the fifth day following the day of the receipt of such proceeds by the Company or any of its Subsidiaries).;
(biii) If, for any fiscal quarter 50% of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward for the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each immediately preceding fiscal year (such prepayment shall to be made on a date or before each April 15 beginning April 15, 1999);
(an “Excess Cash Flow Application Date”iv) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case 100% of the fourth quarter net cash proceeds of any debt financing of the Company or its Subsidiaries excluding Indebtedness permitted under subparagraphs (a)-(i) of Section 8.03 (such prepayment to be made on or before the fifth day following the day of the receipt of such proceeds by the Company or any of its Subsidiaries); and
(v) 100% of the aggregate net cash proceeds of each Casualty Event to the extent that the aggregate amount of net cash proceeds of all Casualty Events exceeds $1,000,000 during any fiscal year end. Notwithstanding (unless (A) the foregoing Company has notified the Agent in writing, prior to the Company's receipt of such proceeds, that the Company intends to apply such proceeds toward replacement, restoration, rebuilding or repair of the damaged property within one hundred eighty (180) days after the receipt of such net cash proceeds and without duplication under (B) at all times prior to such application of the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be appliedproceeds, to the prepayment extent that such proceeds are in excess of $1,000,000 with respect to any Casualty Event, they are deposited in an escrow account with a financial institution acceptable to the Agent and are encumbered by a perfected first priority security interest in favor of the Loans in accordance with Section 2.12(b) (unless otherwise agreed Agent for the benefit of the Lenders not subject to in writing by and among Lendersany other Liens); (provided that any Lender may decline any , such prepayment (collectively, to be made on or before the “Declined Amount”), in which case fifth day following the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, receipt of such proceeds by the Borrower shall also pay Company or any amounts owing pursuant to Section 2of its Subsidiaries.
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Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning Commencing with the fiscal quarter year of the Borrower ending March 31on or around August 1, 20092020, there shall be Excess Cash Flowwithin five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) for such fiscal year, the Borrower shall, on if the relevant Excess Cash Flow Application Dateof the Borrower and the Restricted Subsidiaries is greater than $10,000,000, apply 50cause to be prepaid an aggregate principal amount of Term Loans equal to (A) 75% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of $10,000,000, if any, for the fiscal year covered by such financial statements, minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buy-backs made by the Borrower or any Restricted Subsidiary in an amount equal to the amount actually paid in respect thereof) of Term Loans, Refinancing Loans in the form of term loans and Permitted Alternative Incremental Facilities Debt in the form of term loans or notes, in each case to the extent such Indebtedness is secured by a Lien on the Collateral that is pari passu with the Lien securing the Obligations, during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow toward the prepayment payment and (2) all voluntary prepayments of the ABL Facility, Incremental Revolving Loans, Refinancing Loans in the form of revolving loans or any other revolving credit facility refinancing, replacing or extending any of the foregoing, during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow payment to the extent the commitments under the ABL Facility or other amounts revolving credit facility, as set forth applicable, are permanently reduced by the amount of such payments (except with respect to voluntary prepayments of the ABL Facility the proceeds of which were used to fund any increase to the upfront fees or original issue discount arising in connection with the primary syndication of the Initial Term Loans (any voluntary prepayments, made following the fiscal year-end but prior to the making of such prepayment under this clause (B), an “After Year-End Payment”), except, in the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with the proceeds of long-term Indebtedness (other than revolving loans); provided that (x) the ECF Percentage shall be reduced to 50% if the Consolidated First Lien Net Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.50:1.00 and greater than or equal to 3.00:1.00 (y) the ECF #95787455v10 Percentage shall be reduced to 25% if the Consolidated First Lien Net Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.00:1.00 and greater than or equal to 2.50:1.00 and (z) the ECF Percentage shall be reduced to 0% if the Consolidated First Lien Net Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 2.50:1.00; provided further, to the extent so elected by the Borrower, following the making of any After Year-End Payment, (i) the Consolidated First Lien Net Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Payment as if payment was made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated Consolidated First Lien Net Leverage Ratio and (ii) such After Year-End Payment shall not be applied to the calculation of the Consolidated First Lien Net Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow prepayment.
(ii) (A) Subject to Section 2.6(c2.05(b)(ii)(B). Each , if following the Closing Date (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets, including any Sale Leaseback that constitutes a Disposition (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party, or pursuant to clause (iii) of ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇), (▇) (with respect to clause (i) thereof, the Net Cash Proceeds of any such Specified Disposition are not subject to this Section 2.05(b)(ii) solely to the extent that such Net Cash Proceeds are applied to reduce outstanding pension liabilities on a dollar-for-dollar basis) and (s)) or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or any Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Term Loans equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be made required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on a date or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.05(b)(ii)(B) (an “Excess which notice may be provided only if no Specified Event of Default has occurred and is then continuing) or (II) until the aggregate amount of Net Cash Flow Application Date”Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) no later than 45 days after each fiscal quarter end for within the first three fiscal quarters and 90 days time periods set forth therein exceeds $10,000,000 in the case of the fourth quarter of aggregate during any fiscal year end. Notwithstanding the foregoing (and without duplication under the definition thereafter only amounts in excess of Excess Cash Flow, the amount of Loans such thresholds shall be required to be repaid prepaid) and (2) if at the time that any such prepayment would be required, the Borrower or any of the Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with the Liens securing the Obligations pursuant to this clause the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (b) for any fiscal quarter shall such Indebtedness required to be reduced offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a dollar for dollar pro rata basis by (determined on the basis of the aggregate outstanding principal amount of optional prepayments of the Term Loans made pursuant to Section 2.5 during and Other Applicable Indebtedness at such fiscal quarter.
(ctime) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly, provided that (a) the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.12(bthe terms hereof and (b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may the extent the holders of Other Applicable Indebtedness decline any to have such prepayment (collectivelyindebtedness repurchased or prepaid, the “Declined Amount”), declined amount shall promptly (and in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to any event #95787455v10 within five (5) Business Days after the date of such prepayment on rejection) be applied to prepay the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than Term Loans in accordance with the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2terms hereof.
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Mandatory Prepayments. Borrower shall prepay the Loans as follows:
(ai) One hundred percent (100%) of the cash proceeds of all sales of tangible assets (other than obsolete, surplus or worn out equipment) by Borrower or any Subsidiary of Borrower not in the ordinary course of business and with a purchase price greater than $2,000,000.00, net of the ordinary and reasonable costs of closing such sale and net of debt directly related to such asset sold and that is repaid in connection with the closing of the sale of such asset. For purposes of determining if the $2,000,000.00 threshold has been met, all such sales within any rolling 3-month period shall be aggregated. Such mandatory prepayment shall be due within ten (10) Business Days of the closing of such sale, and all such prepayments from net sales proceeds shall be applied to the outstanding principal balance of the Term Loan Facility payable by Borrower on the then remaining Term Loan Installment Dates, in inverse order of maturity.
(ii) One hundred percent (100%) of the net cash proceeds of any casualty, condemnation or insurance proceeds received by Borrower or any Subsidiary of Borrower, to the extent that such casualty, condemnation or insurance proceeds are not utilized to repair the affected asset or reinvested in a replacement asset in either case within one hundred eighty (180) days after the applicable casualty or condemnation. Such mandatory prepayment shall be due within one hundred eighty (180) days of the receipt of such proceeds and all such repayments from such proceeds shall be applied to the outstanding principal balance of the Term Loan Facility payable by Borrower on the then remaining Term Loan Installment Dates, in inverse order of maturity.
(iii) If, for Koko`oha’s fiscal year ending December 31, 2015 or any fiscal year thereafter, Koko`oha and its Subsidiaries have Excess Cash Flow based on the annual fiscal year end audited financial statements for such fiscal year, within one hundred and eighty (180) days after the such fiscal year end Borrower shall prepay the Term Loan Facility in an aggregate principal amount equal to (1) fifty percent (50%) of such Excess Cash Flow if the Leverage Ratio is equal to or greater than 4.50 to 1.00, (2) twenty percent (20%) of such Excess Cash Flow if the Leverage Ratio is less than 4.50 to 1.00 but equal to or greater than 2.50 to 1.00, or (3) zero percent (0%) of such Excess Cash Flow if the Leverage Ratio is less than 2.50 to 1.00 (“Excess Cash Flow Recapture”), with all mandatory prepayments made by Borrower pursuant to this clause (iii) applied to the outstanding principal balance of the Term Loans payable by Borrower on the then remaining Term Loan Installment Dates, in inverse order of maturity.
(iv) Upon receipt of a report pursuant to clause (vi) of Subparagraph 5.01(a) projecting non-compliance with any financial covenant set forth in Paragraph 5.03 based on the consummation expiration or termination of any lease, license or permit, the Agent may, upon fifteen (15) days prior written notice, require Borrower to make a mandatory prepayment of the Classmates IPOTerm Loans in an amount sufficient to bring Borrower into compliance with such financial covenant. If any mandatory prepayment is required as a result of the expiration or termination of any lease, license or permit, the quarterly installment of principal due under the Term Loans will be reduced by an amount equal to: (i1) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to the mandatory prepayment under this clause (biv), (2) for any fiscal quarter shall be reduced on a dollar for dollar basis divided by the amount number of optional prepayments calendar quarters then remaining in an assumed amortization period of Loans made pursuant to Section 2.5 during such fiscal quarter.
twelve (c12) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in years which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment commenced on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Closing Date.
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Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% If, after giving effect to any termination or reduction of the net cash proceeds received by Aggregate Maximum Credit Amounts pursuant to Section 2.06(c), the total Revolving Credit Exposures exceeds the total Revolving Commitments, then the Borrower in connection with shall (A) prepay the Classmates IPO and (y) $30,000,000 shall be applied Borrowings on the date of the Classmates IPO toward the prepayment such termination or reduction in an aggregate principal amount equal to such excess, and (B) if any excess remains after prepaying all of the Loans and other amounts Borrowings as set forth a result of an LC Exposure, pay to the Administrative Agent on behalf of the Lenders an amount equal to such excess to be held as cash collateral as provided in Section 2.6(c2.08(j).
(bii) IfUpon any redetermination of the amount of the Borrowing Base in accordance with Section 2.07, for if a Borrowing Base Deficiency exists, then the Borrower shall apply funds in an amount equal to such Borrowing Base Deficiency as follows: (A) first, to prepay any fiscal quarter outstanding Swingline Loans and (B) thereafter, at the Borrower’s discretion provided that any such remaining amount is applied to either prepay any outstanding Borrowings of Revolving Loans, provide cash collateral in accordance with Section 2.08(j), or to prepay any outstanding Borrowings of Term Loans provided that any prepayment of Term Loans must be to both 5-Year Loans and 7-Year Loans in proportion to the principal amount of each such Class outstanding. The Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply obligated to make 50% of such Excess Cash Flow toward the prepayment and/or deposit of cash collateral within 90 days following its receipt of the Loans New Borrowing Base Notice in accordance with Section 2.07(d) and other amounts as set forth in Section 2.6(c). Each to make the balance of such prepayment shall within 180 days of such date; provided that all payments on outstanding Revolving Loans to be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (bii) for any fiscal quarter shall must be reduced made on a dollar for dollar basis by or prior to the amount of optional prepayments of Revolving Maturity Date, all payments on outstanding 5-Year Term Loans to be made pursuant to Section 2.5 during such fiscal quarterthis clause (ii) must be made on or prior to the 5-Year Term Maturity Date and all payments on outstanding 7-Year Term Loans to be made pursuant to this clause (ii) must be made on or prior to the 7-Year Term Maturity Date.
(ciii) Amounts Upon any adjustments to be applied in connection with prepayments made the Borrowing Base pursuant to Section 2.6 9.02(j) or Section 9.12(c), if a Borrowing Base Deficiency exists, then the Borrower shall apply funds in an amount equal to such Borrowing Base Deficiency as follows: (A) first, to prepay any outstanding Swingline Loans and (B) thereafter, at the Borrower’s discretion provided that any such remaining amount is applied to either prepay any outstanding Borrowings of Revolving Loans, provide cash collateral in accordance with Section 2.08(j), or to prepay any outstanding Borrowings of Term Loans. The Borrower shall be obligated to make such prepayment and/or deposit of cash collateral on the date it or any Subsidiary receives proceeds as a result of such disposition or debt incurrence.
(iv) Each prepayment of Borrowings (other than Swingline Loans) pursuant to this Section 3.04(c) shall be applied, first, ratably to any ABR Borrowings then outstanding, and, second, to any Eurodollar Borrowings then outstanding, and if more than one Eurodollar Borrowing is then outstanding, to each such Eurodollar Borrowing in order of priority beginning with the prepayment Eurodollar Borrowing with the least number of days remaining in the Loans Interest Period applicable thereto and ending with the Eurodollar Borrowing with the most number of days remaining in accordance with Section 2.12(bthe Interest Period applicable thereto.
(v) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of Borrowings (other than Swingline Loans) pursuant to this Section 3.04(c) shall be applied ratably to the Loans under of the relevant Class included in the prepaid Borrowings. Prepayments pursuant to this Section 2.6 3.04(c) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to extent required by Section 23.02.
Appears in 1 contract
Sources: Credit Agreement (Plains Exploration & Production Co)
Mandatory Prepayments. (a) Upon Subject to the consummation provisions of the Classmates IPOSenior Loan Agreement, on each date on which Lender actually receives a distribution of Net Proceeds, and if Lender is not obligated to make such Net Proceeds available to Borrower for a Restoration, Borrower shall, at Lender’s option, prepay the outstanding principal balance of the Note in an amount equal to: to one hundred percent (i100%) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward Net Proceeds together with interest that would have accrued on such amounts through the prepayment next Monthly Payment Date. The full amount of the Loans and other amounts as set forth in Section 2.6(c). Each any such prepayment shall be applied to the Debt in the order specified in Section 2.3.1 and any amount of such prepayment in excess of that required to pay the Debt in full and such interest shall, if any of the Junior A Mezzanine Loan or the Junior B Mezzanine Loan is in existence, be paid in the following order of priority: (a) first to the Junior A Mezzanine Loan and to the Preferred Equity Investment, pari passu; (b) second to the Junior B Mezzanine Loan; and (c) third, after the indefeasible payment in full of all obligations under the Senior Loan Documents, the Loan Documents, the Junior A Mezzanine Loan Documents and the Junior B Mezzanine Loan Documents, to the Borrower. No Yield Maintenance Payment (or other prepayment premium or fee) shall be due in connection with any prepayment made pursuant to this Section 2.4.2. Any prepayment received by Lender pursuant to this Section 2.4.2 on a date (an “Excess Cash Flow Application Date”) no later other than 45 days after each fiscal quarter end a Monthly Payment Date shall be held by Lender as collateral security for the first three fiscal quarters Debt in an interest bearing account, with such interest accruing to the benefit of Borrower, and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis applied by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2next Monthly Payment Date.
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Thomas Properties Group Inc)
Mandatory Prepayments. (a) Upon Borrower shall prepay the consummation of the Classmates IPO, an amount equal to: Loans as follows:
(i) One hundred percent (100%) of the greater cash proceeds, net of payment of ordinary and reasonable expenses and taxes to the extent such taxes are actually paid, of all sales of assets by Borrower or any Subsidiary of Borrower not in the ordinary course of business (xincluding the sale of membership interests in Borrower or any Subsidiary of Borrower), to the extent the net cash proceeds of the sale of any single asset exceed $500,000, which mandatory prepayment shall be due within ten (10) 50% Business Days of the closing of such sale, and all such prepayments from net sales proceeds shall be applied to the outstanding principal balance of the Term Loan Facility.
(ii) One hundred percent (100%) of the net cash proceeds of any casualty, condemnation or insurance proceeds received by Borrower or any Subsidiary of Borrower, to the extent that such casualty, condemnation or insurance proceeds are not reasonably required by Borrower for replacement, acquisition or redeployment, which mandatory prepayment shall be due within ten (10) Business Days of the receipt of such proceeds to the extent that the net cash proceeds exceed $500,000 in connection with the Classmates IPO any fiscal year and (y) $30,000,000 all such repayments from such proceeds shall be applied on to the date outstanding principal balance of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)Term Loan Facility.
(biii) If, for Borrower’s fiscal year ending December 31, 2014 or any fiscal quarter of year thereafter, Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant has Excess Cash Flow Application Datebased on the annual fiscal year end audited financial statements for such fiscal year, apply within one hundred and eighty (180) days after the such fiscal year end Borrower shall prepay Loans in an aggregate principal amount equal to (1) fifty percent (50% %) of such Excess Cash Flow toward if the prepayment Leverage Ratio is equal to or greater than 4.50 to 1.00, or (2) zero percent (0%) of such Excess Cash Flow if the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date Leverage Ratio is less than 4.50 to 1.00 (an “Excess Cash Flow Application DateRecapture”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow), the amount of Loans required to be repaid with all mandatory prepayments made by Borrower pursuant to this clause (biv) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment outstanding principal balance of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Term Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Facility.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPOIf any Capital Stock shall be issued by any Group Member, an amount equal to: (i) the greater of (x) to 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such issuance toward the prepayment of the Term Loans and other amounts the Revolving Loans as set forth in Section 2.6(c2.7(e).
(b) If any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such incurrence toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.7(e).
(c) If on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event, then, unless a Reinvestment Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.7(e); 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 toward the prepayment of the Term Loans and the Revolving Loans as set forth in Section 2.7(e).
(d) If, for any fiscal quarter year of the Borrower beginning commencing with the fiscal quarter year ending March December 31, 20092010, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and other amounts the Revolving Loans as set forth in Section 2.6(c2.7(e). Each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 five days after each fiscal quarter end the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowwith respect to which such prepayment is made, the amount of Loans are required to be repaid pursuant delivered to this clause the Lenders and (bii) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during date such fiscal quarterfinancial statements are actually delivered.
(ce) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 2.7 shall be applied, to the extent that no Term Loans are then outstanding, to the prepayment of Revolving Loans without an accompanying reduction of the Revolving Commitments; otherwise, first, to the prepayment of the Term Loans in accordance with and, second, to the prepayment of Revolving Loans without an accompanying reduction of the Revolving Commitments. The application of any prepayment pursuant to Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount 2.7 shall be distributed made, first, to the prepaymentABR Loans and, on a pro rata basissecond, of the Loans held by Lenders that have elected to accept such Declined AmountsEuro-dollar Loans. Each prepayment of the Loans under Section 2.6 2.7 (except in the case of Revolving Loans that are ABR Loans) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Lead Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending September 30, 2022, the Lead Borrower shall prepay the outstanding principal amount of Initial Term Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) the ECF Percentage of Excess Cash Flow of the Lead Borrower and its Restricted Subsidiaries for the Fiscal Year then ended, minus (B) at the option of the Lead Borrower, the aggregate principal amount of (x) any Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date, (y) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction), in each case under this clause (y) prior to such date and based upon the actual amount of Cash paid in connection with the relevant assignment and (z) the amount of any voluntary prepayments, voluntary repurchases or voluntary redemptions of any Other Indebtedness that is secured by the Collateral on a pari passu basis with the Obligations prior to such date, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Lead Borrower or its Restricted Subsidiaries), minus (C) without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, all Cash payments in respect of capital expenditures made during such period and, at the option of the Lead Borrower, any Cash payments in respect of any such capital expenditures made after such period and prior to the date of the applicable Excess Cash Flow payment (except, in each case, to the extent financed with longterm Indebtedness (other than revolving Indebtedness)), minus (D) Cash payments made during such period in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries), or, at the option of the Lead Borrower, any Cash payments in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries) made after such period and prior to the date of the applicable Excess Cash Flow payment (except, in each case, to the extent financed with longterm Indebtedness (other than revolving Indebtedness)) (such amount, that is required to be prepaid pursuant to this Section 2.11(b)(i), after giving effect to such calculation in clauses (A) through (D), the “Required ECF Amount”); provided that, (1) no prepayment under this Section 2.11(b)(i) shall be required to the extent that the Required ECF Amount would not exceed the greater of $35,000,000 and 5% of Consolidated Adjusted EBITDA of the last day of the most recently ended Test Period #94168740v7#95106251v8 (and only the amount in excess of such threshold shall be required to be prepaid under this Section 2.11(b)(i)), (2) at the Lead Borrower’s option, the amount by which the threshold specified in clause (1) exceeds the Required ECF Amount may be applied to any subsequent Fiscal Year to reduce the Required ECF Amount for such fiscal year on a dollar-for-dollar basis; provided, further, that if at the time any such prepayment would be required, the Lead Borrower (or any other Loan Party) is also required to, or is required to offer to, prepay or repurchase any Indebtedness permitted hereunder to be secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable Indebtedness”) with any portion of the amount required to be prepaid pursuant to this Section 2.11(b)(i), then the Lead Borrower may apply such portion of such prepayment amount on a pro rata basis to the prepayment of the Initial Term Loans and the relevant Other Applicable Indebtedness at such time) to the prepayment of the Initial Term Loans and the relevant Other Applicable Indebtedness, (and such amounts so offered, in any case, shall no longer be required to be applied to prepay the Initial Term Loans).
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale by the Lead Borrower or the other Loan Parties, in each case, in excess of the greater of $70,000,000 or 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, the Lead Borrower shall apply an amount equal to 100% (the “Prepayment Percentage”) of the Net Proceeds received with respect thereto in excess of such threshold (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans in accordance with clause (vi) below; provided that if, prior to the date any such prepayment is required to be made, the Lead Borrower decides to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lead Borrower or any of its subsidiaries (including capital expenditures and Permitted Acquisitions or other Investments), then the Lead Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within 18 months following receipt thereof, (B) the Subject Proceeds are used to prepay Indebtedness incurred to fund amounts and/or replenish cash so reinvested in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lead Borrower or any of its subsidiaries (including capital expenditures and Permitted Acquisitions or other Investments) during the six month period prior to receipt of such Net Proceeds or (C) the Lead Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 18month period and the Subject Proceeds are so reinvested within six months after the expiration of such 18month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Lead Borrower shall promptly prepay the outstanding principal amount of Initial Term Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Lead Borrower or any of its Restricted Subsidiaries is required to, or required to offer to, repay or repurchase any Other Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Initial Term Loans and to the repurchase or repayment of such Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time (and such amounts so offered, in any case, shall no longer be required to be applied to prepay the Initial Term Loans); provided, further, that if at any time during the 18 month reinvestment period specified above (or 24 month reinvestment period, if applicable), (I) the First Lien Net Leverage Ratio calculated on a Pro Forma Basis as of the last day of any Test Period ending during such period (giving pro forma effect to the payment required hereby) is #94168740v7#95106251v8 less than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, the Prepayment Percentage shall be reduced to 50%, and only 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO Subject Proceeds that are not reinvested will be required to be prepaid pursuant to this Section 2.11(b)(ii) and (yII) $30,000,000 if the First Lien Net Leverage Ratio calculated on a Pro Forma Basis as of the last day of any Test Period ending during such period (giving pro forma effect to the payment required hereby) is less than or equal to 2.25 to 1.00, the Prepayment Percentage shall be applied on the date of the Classmates IPO toward the prepayment of the Loans reduced to 0%, and other amounts as set forth in no Subject Proceeds will be required to be prepaid pursuant to this Section 2.6(c2.11(b)(ii).
(biii) IfIn the event that the Lead Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Lead Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for any fiscal quarter except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of Borrower beginning the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrequirements of Section 9.02(c)), the Lead Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Lead Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Lead Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary or the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, apply 50% as the case may be, for so long as the repatriation to the Lead Borrower of any such amount would be prohibited under any Requirement of Law or conflict with the fiduciary duties of such Excess Cash Flow toward 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 (the prepayment Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation); it being understood that once the repatriation of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, 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 Initial Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)) and (B) if the Lead Borrower determines in good faith that the repatriation to the Lead Borrower of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in material and adverse tax consequences, 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 Lead Borrower, the amount the Lead Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the Lead Borrower the Restricted Amount without incurring such material and adverse tax liability; provided that, if within 365 days of such determination, to the extent that the repatriation of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the Subject Proceeds or #94168740v7#95106251v8 Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be repaid made by the Lead Borrower pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied2.11(b), to the prepayment decline all (but not a portion) of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any its Applicable Percentage of such prepayment (collectivelysuch declined amounts, solely to the extent not applied to any other Indebtedness of the Lead Borrower or its subsidiaries as a mandatory prepayment of such Indebtedness, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Lead Borrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c). If any Lender fails to deliver a notice to 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 Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Term Loans pursuant to this Section 2.11(b) shall be distributed applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans), (B) with respect to each Class of Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be applied against the remaining scheduled installments of principal due in respect of the Term Loans as directed by the Lead Borrower (or, in the absence of direction from the Lead Borrower, to the prepaymentremaining scheduled amortization payments in respect of the Term Loans in direct order of maturity), and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be applied on a pro rata basis, basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or Eurocurrency Rate Loans; provided that the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 amount thereof shall be accompanied by accrued interest applied first to ABR Loans to the date of such prepayment on full extent thereof before application to the Eurocurrency Rate Loans in a manner that minimizes the amount prepaid; provided, that if a Eurodollar Loan is prepaid on of any day other than payments required to be made by the last day of the Interest Period applicable thereto, the Lead Borrower shall also pay any amounts owing pursuant to Section 2.2.16. Any prepayment of Initial Te
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of No later than ten (x10) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on Business Days after the date on which the financial statements with respect to each fiscal year of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Holdings are required to be delivered pursuant to Section 2.6(c5.01(a).
(b) If, for any fiscal quarter of Borrower beginning commencing with the fiscal quarter year ending March on December 31, 20092017, there the Borrower shall prepay the outstanding principal amount of Loans in accordance with clause (v) of this Section 2.11(b) below in an aggregate principal amount equal to (in each case, to the extent such amount in such fiscal year period exceeds $5,000,000): (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of Holdings and its Subsidiaries for the period then ended, minus (B) at the option of the Borrower, without duplication of any amount deducted in calculating Excess Cash Flow for such period and excluding any such payment that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Excess Cash Flow fiscal year period, the aggregate principal amount of:
(1) except to the extent deducted in the calculation of Excess Cash Flow, any Loans prepaid pursuant to Section 2.11(a) and prepaid pursuant to the relevant Incremental Facility Amendment (to the extent that such prepayments were not funded with the proceeds of other 43 Indebtedness of Holdings, the Borrower shallor its Subsidiaries (other than Indebtedness in respect of any revolving credit facility)) prior to such date, on plus (2) except to the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days extent deducted in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition calculation of Excess Cash Flow, the amount of any reduction in the outstanding amount of any Loans resulting from any assignment made in accordance with any Dutch Auction prior to such date, in an amount equal to the lesser of the actual amount of cash paid in connection with the relevant assignment and the applicable reduction; (ii) In the event and on each occasion that any Net Proceeds in respect of any Prepayment Event set forth in clause (a) or (b) of the definition thereof are received by or on behalf of Holdings or any other Loan Party or any Subsidiary in respect of any Prepayment Event, the Borrower shall, promptly after such Net Proceeds are received by Holdings or any other Loan Party or Subsidiary, apply an amount equal to 100% of such Net Proceeds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (v) below; provided that to the extent such Subject Proceeds constitute proceeds of ABL Priority Collateral and so long as the ABL Obligations remain subject to the Intercreditor Agreement, then such Subject Proceeds shall be applied first to prepay in full the ABL Obligations, with any excess to be applied as set forth above; provided further that, (A) if the Borrower shall deliver to the Administrative Agent a certificate of a Financial Officer to the effect that the Loan Parties intend to apply the Subject Proceeds from such event (or a portion thereof specified in such certificate), within 180 days after receipt of such Subject Proceeds, to acquire (or replace or rebuild) real property, equipment or other tangible assets to be used in the business of the Loan Parties, and certifying that no Default has occurred and is continuing, then either (i) so long as no Default has occurred and is continuing, no prepayment shall be required pursuant to this paragraph in respect of the Subject Proceeds specified in such certificate, it being understood that to the extent of any such Subject Proceeds therefrom that have not been so applied (or commited in writing to be applied) by the end of such 180-day period, a prepayment shall be required at such time in an amount equal to such Subject Proceeds that have not been so applied or (B) if, at the time that any such prepayment would be required hereunder, Holdings or any of its Subsidiaries is required to repay or repurchase any other Indebtedness (or offer to repay or repurchase any 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 Proceeds (such Indebtedness required to be so repaid pursuant or repurchased (or offered to this clause (b) for any fiscal quarter shall be reduced repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a dollar for dollar pro rata basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Subject Loans in accordance 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 extended with Section 2.12(boriginal issue discount) (unless otherwise agreed to in writing by and among Lendersat such time); it being understood that (provided that any Lender may decline any such prepayment (collectively, 1) the “Declined Amount”), in which case portion of the Declined Amount shall be distributed Subject Proceeds allocated to the prepaymentOther 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, on a pro rata basisif any, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 Subject Proceeds shall be accompanied by accrued interest allocated to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.Subject 44
Appears in 1 contract
Sources: Term Loan Credit Agreement (Global Brass & Copper Holdings, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Commencing with the greater of (x) 50% first full fiscal year of the net cash proceeds received by Parents ending after the Borrower in connection with Closing Date, within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in related Compliance Certificate has been delivered pursuant to Section 2.6(c6.02(a).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on if the relevant Excess Cash Flow Application Dateof the Parents, apply the Borrower and the Restricted Subsidiaries is greater than $5,000,000, cause to be prepaid an aggregate principal amount of Term Loans (such aggregate amount, the “Excess Cash Flow Prepayment Amount”) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of $5,000,000, if any, for the fiscal year covered by such financial statements (commencing with the first full fiscal year ending after the Closing Date), minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buybacks made by any Parent, the Borrower or any Restricted Subsidiary in an amount equal to the amount actually paid in respect thereof) of Term Loans during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow toward payment and (2) all voluntary prepayments of the ABL Facility or any other revolving credit facility during such fiscal year or after such fiscal year and prior to the making of such ECF payment to the extent the commitments under the ABL Facility or other revolving credit facility, as applicable, are permanently reduced by the amount of such payments (any voluntary prepayments, made following the fiscal year end but prior to the making of such prepayment under this clause (B), an “After Year-End Payment”), except, in the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with the proceeds of Indebtedness (other than revolving loans) or any Cure Amounts; provided that (y) the ECF Percentage shall be reduced to 25% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.75:1.00 and greater than or equal to 3.25:1.00 and (z) the ECF Percentage shall be reduced to 0% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.25:1.00; provided, further, to the extent so elected by the Borrower, following the making of any After Year-End Payment, (i) the First Lien Senior Secured Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Payment as if payment was made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated First Lien Senior Secured Leverage Ratio and (ii) such After Year-End Payment shall not be applied to the calculation of the First Lien Senior Secured Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow prepayment.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if following the Closing Date (x) any Parent, the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party, or pursuant to clause (iii) of the proviso thereto), (e), (f), (g), (j), (k), (n), (o), (p), (q), (r) and (s)), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Parent, the Borrower or any Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Term Loans equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion of such 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 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing) or (II) until the aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein and not previously applied to such a prepayment exceeds $10,000,000 for any single Disposition or series of related Dispositions or $20,000,000 in the aggregate during such fiscal year (and thereafter only amounts in excess of such thresholds shall be required to be prepaid) and (2) if at the time that any such prepayment would be required, any Parent, the Borrower or any of the Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with the Liens securing the Obligations pursuant to the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly (provided that (a) the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof and (b) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within five (5) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(A) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other amounts than any Disposition specifically excluded from the application of Section 2.05(b)(ii)(A)) or any Casualty Event, at the option of the Borrower, the Borrower may reinvest an amount equal to all or any portion of such Net Cash Proceeds in assets useful for its business (other than working capital, except for short-term capital assets but including Permitted Acquisitions and Capital Expenditures) within (x) twelve (12) months following receipt of such Net Cash Proceeds or (y) if the Borrower enters into a commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, one hundred eighty (180) days after the twelve (12) month period that follows receipt of such Net Cash Proceeds; provided that if any Net Cash Proceeds are not so reinvested by the deadline specified in clause (x) or (y) above, as applicable, or if any such Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to the Asset Percentage of any such Net Cash Proceeds shall be applied, in accordance with Section 2.05(b)(ii)(C), to the prepayment of the Term Loans as set forth in this Section 2.6(c2.05.
(B) On each occasion that the Borrower must make a prepayment of the Term Loans pursuant to this Section 2.05(b)(ii), the Borrower shall, within five (5) Business Days after the date of realization or receipt of such Net Cash Proceeds in the minimum amount specified above (or, in the case of prepayments required pursuant to Section 2.05(b)(ii)(B), within five (5) Business Days of the deadline specified in clause (x) or (y) thereof, as applicable, 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, in accordance with Section 2.05(b)(vi) below, of the principal amount of Term Loans in an amount equal to the Asset Percentage of such Net Cash Proceeds realized or received.
(iii) If, following the Closing Date, any Parent, the Borrower or any Restricted Subsidiary incurs or issues any (A) Refinancing Term Loans, (B) Indebtedness pursuant to Section 7.03(w) or (C) Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iv) The Term Loans will be prepaid in an amount of $40 million on the second business day following the earliest of (x) January 15, 2018, as such date may be extended pursuant to the terms of the Inventure Acquisition Agreement, unless the Inventure Acquisition Closing Date occurs on or prior to such date (as extended), (y) the consummation of the Inventure Acquisition without the use of the proceeds in the Inventure Account and (z) prior to the consummation of the Inventure Acquisition, the termination of the Inventure Acquisition Agreement in accordance with its terms.
(v) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied to the installments thereof in direct order of maturity pursuant to Section 2.07 following the applicable prepayment event; provided that any mandatory prepayment pursuant to Section 2.05 shall be applied on a pro rata basis to the Term Loans and, except to the extent a lesser prepayment is required pursuant to the applicable Incremental Facility Amendment or Extension Offer with respect to any applicable Class of Incremental Term Loans or Extended Term Loans, any Incremental Term Loans and Extended Term Loans. Each such prepayment shall be made on a date paid to the Lenders in accordance with their respective Applicable Percentages subject to clause (an “Excess Cash Flow Application Date”vi) no later than 45 days after each fiscal quarter end for of this Section 2.05(b).
(vi) The Borrower shall notify the first three fiscal quarters and 90 days Administrative Agent in the case of the fourth quarter writing of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition mandatory prepayment of Excess Cash Flow, the amount of Term Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to clauses (i), (ii), and (iii) of this Section 2.5 during 2.05(b) prior to 1:00 p.m. at least five (5) Business Days (or such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 lesser number of Business Days as shall be applied, acceptable to the prepayment Administrative Agent) on the date of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 such notice shall be accompanied by accrued interest to specify the date of such prepayment on and provide a reasonably detailed calculation of the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the Interest Period contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Applicable Percentage of the prepayment. Each Appropriate Lender may reject all of its Applicable Percentage of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (i) or (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of 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 such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be offered to the Lenders under the Second Lien Credit Agreement and such Lenders may decline pursuant to the terms set forth therein. Any Declined Proceeds also declined under the Second Lien Credit Agreement shall be retained by the Borrower (“Retained Declined Proceeds”).
(vii) [Reserved].
(viii) Notwithstanding any other provision of this Section 2.05(b), (i) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Restricted Subsidiary that is a Foreign Subsidiary otherwise giving rise to a prepayment pursuant to Section 2.05(b)(ii) (a “Restricted Disposition”), the Net Cash Proceeds of any Casualty Event of a Restricted Subsidiary that is a Foreign Subsidiary (a “Restricted Casualty Event”), or Excess Cash Flow attributable to a Foreign Subsidiary would be prohibited or delayed by applicable theretolocal law from being distributed or otherwise transferred to the Borrower, the realization or receipt of the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be taken into account in measuring the Borrower’s obligation to repay Term Loans at the times provided in Section 2.05(b)(i), or the Borrower shall not be required to make a prepayment at the time provided in Section 2.05(b)(ii), as the case may be, for so long, but only so long, as the applicable local law will not permit such distribution or transfer (the Borrower hereby agreeing to cause the applicable Restricted Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to permit such repatriation), and once distribution or transfer of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, the amount of such Net Cash Proceeds or Excess Cash Flow permitted to be distributed or transferred (net of additional taxes payable or reserved against as a result thereof) will be promptly (and in any event not later than two (2) Business Days after such distribution or transfer is permitted) taken into account in measuring the Borrower’s obligation to repay the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that the Borrower has determined in good faith (as set forth in a written notice delivered to the Administrative Agent) that repatriation of any or all of the Net Cash Proceeds of any Restricted Disposition or any Restricted Casualty Event or Excess Cash Flow attributable to a Foreign Subsidiary would have a material adverse tax consequence (taking into account any foreign tax credit or benefit received in connection with such repatriation), the amount of the Net Cash Proceeds or Excess Cash Flow so affected shall not be taken into account in measuring the Borrower’s obligation to repay Term Loans pursuant to this Section 2.05(b). For the avoidance of doubt, Net Cash Proceeds and Excess Cash Flow (and related income) excluded from application under Section 2.05(b)(i) or (ii) by operation of this Section 2.05(b)(viii) shall also pay be excluded in any amounts owing determinations of Restricted Payments permitted to be made pursuant to Section 27.06 (including, without limitation, for purposes of clauses (b) and (f) of the definition of “Available Amount”).
Appears in 1 contract
Sources: First Lien Term Loan Credit Agreement (Collier Creek Holdings)
Mandatory Prepayments. (a) Upon At any time that the consummation Borrower or any of the Classmates IPO, an amount equal to: its Subsidiaries issues any equity or incurs any Indebtedness for borrowed money (i) the greater exclusive of (xa) 50% of the net cash proceeds received by equity issued to, or Indebtedness for borrowed money payable to, the Borrower in connection with the Classmates IPO and (yb) $30,000,000 common stock issued by, or capital contributions made to, the Borrower, subject to Change of Control limitations set forth herein), the Borrower shall be applied prepay, on the date of the Classmates IPO toward the prepayment such issuance or incurrence thereof, such amount of the Term Loans as is equal to the net proceeds of such equity or Indebtedness. If the amount of such net proceeds exceeds the aggregate outstanding principal amount of the Term Loans, the Term Loans shall be repaid in full and other amounts as set forth any excess shall serve to prepay the RC Loans, or, at the Borrower's option, reduce the amount of the RC Commitment, in Section 2.6(c)accordance with Subsection 1.1.4.
(b) IfOn or prior to April 30 of each fiscal year of the Borrower, for any fiscal quarter of Borrower beginning with commencing April 30, 2004 until the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowLoans are repaid in full, the Borrower shallshall deliver to the Agent, on a written statement calculating the relevant Excess Cash Flow Application Datefor the prior fiscal year (the "subject fiscal year") of the Borrower and its Subsidiaries, apply on a Consolidated basis, and within seven (7) Business Days of the delivery of such written statement shall pay to the Agent, for the ratable account of Lenders, an amount equal to 50% of such Excess Cash Flow toward the prepayment Flow; provided, however, that so long as no Default or Event of Default is then occurring, voluntary reductions of the RC Commitment pursuant to Section 1.1.3 (Voluntary Commitment Reductions) and voluntary prepayments of Term Loans and other amounts as set forth in pursuant to Section 2.6(c). Each such prepayment 1.2.5 (Voluntary Prepayments) made during the subject fiscal year shall be made on applied first as a date (an “credit against the required Excess Cash Flow Application Date”) payment and provided, further, that if no later than 45 days after each fiscal quarter end for Default or Event of Default is then occurring, the first three fiscal quarters and 90 days Borrower shall not be obligated to make the foregoing payment in the case of the fourth quarter of any fiscal year endin which the Borrower's Consolidated Total Debt to EBITDA Ratio for the prior fiscal year was less than 2.00:1.00. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, If the amount of such Excess Cash Flow Payment exceeds the aggregate outstanding principal amount of the Term Loans, the Term Loans required to shall be repaid pursuant in full and any excess shall serve to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by prepay the RC Loans, or, at the Borrower's option, reduce the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterthe RC Commitment, in accordance with Subsection 1.1.
(c) Amounts In the event the Borrower or any of its Subsidiaries receives property or casualty insurance proceeds and/or a condemnation or similar payment, (a) if such payment is in excess of $1,000,000.00 for one event or a series of related events and the Agent does not determine in its discretion that such proceeds are to be applied in connection with prepayments made pursuant used by (and upon such determination, such proceeds will be used by) Borrower to Section 2.6 shall be applied, to repair or replace the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretoproperty, the Borrower shall also promptly, and in any event no later than thirty (30) days from the date of receipt thereof, pay to the Agent, for the ratable benefit of the Lenders, 100% of all such insurance proceeds or payments as a prepayment of the Loans, or (b) if such payment is $1,000,000 or less for any amounts owing pursuant one event or series of related events and the Borrower or relevant Subsidiary does not use the proceeds to Section 2repair or replace the applicable property, the Borrower shall promptly, and in any event no later than thirty (30) days from the date of receipt thereof, pay to the Agent, for the ratable benefit of the Lenders, 100% of all such insurance proceeds or payments as a prepayment of the Loans. If the amount of such insurance proceeds paid to the Agent exceeds the aggregate outstanding principal amount of the Term Loans, the Term Loans shall be repaid in full and any excess shall serve to prepay the RC Loans or, at Borrower's option, to reduce the amount of the RC Commitment, in accordance with Subsection 1.1.4.
(d) At any time that the Borrower or any of its Subsidiaries sells, leases, abandons, transfers or otherwise disposes of any of its assets or property, whether directly or indirectly, in a single transaction or series of transactions (other than transfers permitted under clauses (a) through (c) and (f) of Subsection 7.7.2), the Borrower shall promptly prepay such amount of the Term Loans as is equal to the net proceeds of such disposition. If the amount of the net proceeds (after taxes) exceeds the aggregate outstanding principal amount of the Term Loans, the Term Loans shall be repaid in full and any excess shall serve to reduce the amount of the RC Commitment, in accordance with Subsection 1.1.4.
Appears in 1 contract
Mandatory Prepayments. (a) Upon Unless the consummation Required Lenders otherwise agree, the Term Loans owing to each Lender shall be repaid, without premium, within 100 days after the last day of each fiscal year, commencing with the fiscal year ending December 31, 2013 of the Classmates IPOCompany in accordance with the provisions of Section 7.4 by an amount equal to (i) 50% (such percentage, as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow for such fiscal year minus (ii) the sum of (A) all optional prepayments of the Loans during such fiscal year (other than any optional prepayments made under Section 7.2(b)) and (B) all optional prepayments of Multi-Currency Loans during such fiscal year (but only to the extent that the applicable commitments under the Multi-Currency Credit Agreement are permanently reduced by the amount of such payments); provided that (x) the ECF Percentage shall be 25% if the First Lien Secured Leverage Ratio for such period of four consecutive fiscal quarters of the Company ending on the last day of such fiscal year was less than or equal to 1.5 to 1.0 and greater than 1.0 to 1.0 and (y) the ECF Percentage shall be 0% if the First Lien Secured Leverage Ratio for such period of four consecutive fiscal quarters of the Company ending on the last day of such fiscal year was less than or equal 1.0 to 1.0.
(b) If any Specified Refinancing shall be incurred by the Company, an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Proceeds thereof shall be applied on the date of the Classmates IPO receipt of such Net Proceeds toward the prepayment of the Loans being refinanced thereby.
(c) Promptly following a Net Proceeds Event (and other amounts as in any event within one Business Day following receipt by the relevant Person of the Net Proceeds from such Net Proceeds Event):
(i) unless the Required Lenders otherwise agree, the Term Loans shall be repaid in the manner set forth in Section 2.6(c7.4(a)., by the amount equal to the aggregate amount of Net Proceeds received from Net Proceeds Events described in clause (a) of such definition; and
(ii) unless the Required Lenders otherwise agree, the Term Loans shall be repaid in the manner set forth in Section 7.4(a), by the amount equal to the portion of the aggregate amount of Net Proceeds (other than the Net Proceeds from Resale Transactions) received by the Company and its Subsidiaries from all Net Proceeds Events described in clause (b) Ifof such definition; provided, however, that (x) no such prepayment of the Term Loans shall be required pursuant to this Section 7.3(c)(ii) with respect to any sale, lease, transfer or other disposition of Term Loan Collateral during any twelve-month period ending on March 31 of each year to the extent that the aggregate amount of such Net Proceeds, together with all other Net Proceeds described in this Section 7.3(c)(ii) received during such period from any sale, lease, transfer or other disposition of Term Loan Collateral, is less than $10,000,000 (or $25,000,000 for the twelve month period ending on March 31, 2012) or the Equivalent in any fiscal quarter of Borrower beginning with other currency thereof; provided, further, that in the fiscal quarter event that the aggregate Net Proceeds described in this clause (x) received during such twelve-month period (the “Annual Net Proceeds”) is less than $10,000,000 (or $25,000,000 for the twelve month period ending March 31, 2009, there shall be Excess Cash Flow2012), the Borrower shalldifference between $10,000,000 (or $25,000,000 for the twelve month period ending on March 31, on 2012) and the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward Annual Net Proceeds may be added to the $10,000,000 permitted to be excluded from the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (bx) applicable to any subsequent twelve-month period (up to a maximum excluded amount not to exceed $25,000,000 in any such twelve-month period) and (y) for purposes of this Section 7.3(c)(ii) only, the term “Net Proceeds” shall not include the Net Proceeds from any fiscal quarter Specified Disposition to the extent that the aggregate amount of Net Proceeds from all Specified Dispositions since the date hereof does not exceed $25,000,000; provided, however, that any Reinvestment Amount that is not used for the purpose certified by a Responsible Officer of the Company shall be reduced on become Net Proceeds at the end of the applicable 365 or 545, as applicable, day period (in accordance with the definition of “Reinvestment Amount”) and the Company shall repay the Term Loans promptly (but in any event within one Business Day following the end of such 365 or 545 day period) in an amount equal to such unused Reinvestment Amount to the extent required under Section 7.3(c)(ii).
(d) If the Company would incur costs pursuant to Section 7.11 as a dollar for dollar basis by result of any payment due pursuant to this Section 7.3, the Company may deposit the amount of optional prepayments such payment with the Administrative Agent, for the benefit of the Lenders, in a Cash Collateral Account under the control of the Administrative Agent, until the end of the applicable Interest Period at which time such payment shall be made (provided that such deposit does not violate any provision of any Indenture then in effect). The Company hereby grants to the Administrative Agent, for the benefit of such Lenders, a security interest in all amounts in which the Company has any right, title or interest which are from time to time on deposit in such Cash Collateral Account and expressly waives all rights (which rights the Company hereby acknowledges and agrees are vested exclusively in the Administrative Agent) to exercise dominion or control over any such amounts.
(e) Upon the borrowing of any tranche of Term Loans made pursuant to Section 2.5 during 2.1, the Term Loan Commitment of each Lender relating to such fiscal quarter.
(c) Amounts to tranche shall be applied automatically and permanently reduced in connection with prepayments the amount of the Term Loan made by each Lender pursuant to Section 2.6 shall be applied, to such borrowing. The Aggregate Term Loan Commitment terminated on the prepayment Effective Date after the funding of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Initial Term Loans.
Appears in 1 contract
Sources: Term Loan Agreement (Revlon Consumer Products Corp)
Mandatory Prepayments. (a) Upon the consummation Borrowers shall be required to make each of the Classmates IPO, an following payments which shall be applied as a permanent reduction in the outstanding principal amount equal to: of the Loans:
(A) On the earlier of (i) 60 days after the greater of fourth and final Monthly Purchase and (xii) 50% the third (3rd) Business Day after the termination of the net cash proceeds received by Exar Facility upon the Borrower in connection with Collections Milestone (as defined therein) being achieved following the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowfourth Monthly Purchase, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment Borrowers shall be made on make a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with an amount equal to $1,250,000.
(B) On the fifth (5th) Business Day of the seventh (7th) calendar month following the Effective Date and on the fifth (5th) Business Day of each calendar month thereafter until the Loans have been repaid in full, the Borrowers shall make a prepayment of the Loans in an amount equal to $1,000,000 (or, if less, the remaining outstanding principal balance of the Loans).
(C) Promptly upon, and in any event within three (3) Business Days of, receipt of any net cash proceeds (as defined below) by any Credit Party or any of its Subsidiaries, directly or indirectly, from the incurrence, sale or issuance of any Specified Debt or Specified Equity, or any Equity Issuance by any Credit Party or any of its Subsidiaries (each such event, a “Specified Mandatory Prepayment Event”), following the date of the final Monthly Purchase scheduled to occur pursuant to Section 2.12(b5.18 of the Exar RPA and subject to the satisfaction of the Prepayment Conditions, the Borrowers shall prepay the outstanding principal amount of the Loans in an amount equal to twenty percent (20%) of such net cash proceeds thereof. The Borrowers shall promptly (unless and in any event, no later than three (3) Business Days prior to any Specified Mandatory Prepayment Event) determine whether the Prepayment Conditions will be satisfied on the date of such Specified Mandatory Prepayment Event and, if the Borrowers determine that, as of the date of the Specified Mandatory Prepayment Event, the Prepayment Conditions will be satisfied, the Borrowers shall deliver to the Agent a certificate (in form and substance satisfactory to the Agent) signed by an officer of the Borrowers attaching supporting calculations in respect of the Prepayment Conditions and determining the aggregate principal amount of Loans the Borrowers can prepay in satisfaction of the Prepayment Conditions on a pro forma basis, and such amount shall be prepaid upon such Specified Mandatory Prepayment Event. If the Borrowers determine that, as of the date of any Specified Mandatory Prepayment Event, the Prepayment Condition will not be satisfied, the Borrowers shall deliver to the Agent a certificate (in form and substance satisfactory to the Agent) signed by an officer of the Borrowers attaching supporting calculations in respect of the Prepayment Conditions and determining the aggregate principal amount of Loans the Borrowers can prepay in satisfaction of the Prepayment Conditions on a pro forma basis, and such amount shall be prepaid upon such Specified Mandatory Prepayment Event. The provisions of this sub-clause (C) shall not be deemed to be implied consent to any such Specified Mandatory Prepayment Event otherwise agreed prohibited by the terms and conditions of this Agreement. As used herein, “net cash proceeds” means cash proceeds net of underwriting discounts or commissions, and documented legal, accounting and other expenses directly related to such issuance, sale incurrence or offering. Anything contained in this sub-clause (C) to the contrary notwithstanding, in the event that the Borrowers are required to make a mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Loans pursuant to this sub-clause (C), not less than three (3) Business Days by 11:00 a.m. prior to the date on which the Borrowers are required to make such Waivable Mandatory Prepayment (such date, the “Required Prepayment Date”), the Borrower Representative shall notify the Agent in writing of the date on which the Borrowers are required to make such mandatory prepayment, the amount of such mandatory prepayment (including a reasonably detailed calculation thereof, and the basis for such mandatory prepayment). The Agent will promptly thereafter notify each Lender of the amount of such L▇▇▇▇▇’s Pro Rata Share of such Waivable Mandatory Prepayment and such Lender’s option to refuse such amount. Each such Lender may exercise such option to refuse by giving written notice to the Borrower Representative and among Lenders); the Agent of its election to refuse its portion of such mandatory prepayment on or before 12:00 p.m. (provided New York City time) one (1) Business Day prior to the Required Prepayment Date (it being understood that any Lender may decline any that does not notify the Borrower Representative and the Agent of its election to waive receipt of its portion of such mandatory prepayment on or before 12:00 p.m (collectivelyNew York City time) one (1) Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, to receive its portion of such mandatory prepayment). On the Required Prepayment Date, the “Declined Amount”)Borrowers shall pay to the Agent the amount of the mandatory prepayment required hereunder, in which case the Declined Amount amount shall be distributed applied (x) in an amount equal to the prepayment, on a pro rata basis, that portion of the Loans held by mandatory prepayment payable to those Lenders that have elected not to accept waive their rights to receive its portion thereof as set forth herein, to prepay the Loans of such Declined Amounts. Each Lenders (which prepayment shall be applied to prepay the outstanding principal amount of the Loans under Section 2.6 shall be accompanied by accrued interest Obligations in accordance with this Agreement) and (y) to the date extent of such prepayment on any excess, to return to the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than Borrowers for working capital and general corporate purposes.
(D) On the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Termination Date.
Appears in 1 contract
Sources: Credit and Security Agreement (XBP Global Holdings, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than 105 days after the greater end of each fiscal year of the Company (commencing with the fiscal year ending (x) March 31, 2009 or (y) if the Company shall have changed its fiscal year to a calendar year prior to December 31, 2008, December 31, 2008), the Company shall apply an amount in accordance with Section 2.11(b)(iv) in an aggregate Dollar Amount equal to (A) the ECF Percentage of Excess Cash Flow, if positive, for the fiscal year covered by such financial statements minus (B) the sum of (x) 50% all voluntary prepayments of the net cash proceeds received by the Borrower in connection with the Classmates IPO Term Loans during such fiscal year and (y) $30,000,000 all voluntary prepayments of Revolving Loans during such fiscal year to the extent the Revolving Commitments are permanently reduced by the amount of such payments.
(A) If the Company or any Subsidiary receives any Net Cash Proceeds from any Asset Sale or Casualty Event, the Company shall be applied apply an amount equal to 100% of such Net Cash Proceeds (in the case of an Asset Sale by a Foreign Subsidiary in connection with which funds are repatriated to the United States in order to comply with this Section 2.11(b)(ii), net of additional taxes payable or reserved against as a result thereof) in accordance with Section 2.11(b)(iv) on or prior to the date which is ten (10) Business Days after the date of the Classmates IPO toward realization or receipt of such Net Cash Proceeds; provided that no such prepayment shall be required pursuant to this Section 2.11(b)(ii)(A) with respect to such Net Cash Proceeds (x) that the prepayment Company shall reinvest in accordance with Section 2.11(b)(ii)(B) provided that this clause (x) shall not apply to any Asset Sale made in reliance on Section 6.11(m) or (y) if on a Pro Forma Basis, the Company’s Consolidated Leverage Ratio as of the Loans and other amounts last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to the date of receipt of such Net Cash Proceeds is equal to or less than 3.5 to 1.0;
(B) With respect to any Net Cash Proceeds realized or received with respect to any Asset Sale or Casualty Event, at the option of the Company the Company may reinvest all or any portion of such Net Cash Proceeds in assets useful for the Company’s or a Subsidiary’s business within (x) twelve (12) months following receipt of such Net Cash Proceeds or (y) if the Company or a Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, within six (6) months following the last day of such twelve month period; provided that any such Net Cash Proceeds that are not so reinvested within the applicable time period set forth above shall be applied as set forth in Section 2.6(c)2.11(b)(ii)(A) within five (5) Business Days after the end of the applicable time period set forth above.
(biii) If, for If the Company or any fiscal quarter of Borrower beginning with Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 6.01 (without prejudice to the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrestrictions therein), the Borrower shall, on the relevant Excess Cash Flow Application Date, Company shall apply 50an amount equal to 100% of such Excess Net Cash Flow toward Proceeds received by the Company or any Subsidiary therefrom in accordance with Section 2.11(b)(iv) on or prior to the date which is three (3) Business Days after the receipt of such Net Cash Proceeds.
(iv) The Company shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.11(b) at least three (3) Business Days prior to the Loans and other amounts as set forth in Section 2.6(c)date of such prepayment. Each such notice shall specify the date of such prepayment shall be made on and provide a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for reasonably detailed calculation of the first three fiscal quarters and 90 days amount of such prepayment; provided that in the case of the fourth quarter Net Cash Proceeds from an Asset Sale by a Foreign Subsidiary made in reliance on Section 6.11(m), if the Company determines that the repatriation of any fiscal year end. Notwithstanding such proceeds into the foregoing and without duplication under United States in order to prepay Term Loans of the definition U.S. Borrower would result in adverse tax consequences to the Company or its Restricted Subsidiaries then, in lieu of Excess applying all or a portion of such Net Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made Proceeds pursuant to Section 2.5 during 2.11(b)(iv), the Company may apply such fiscal quarter.
(c) Amounts portion of such Net Cash Proceeds to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the prepay Euro Term Loans in accordance with Section 2.12(b2.11(a) within ten (unless otherwise agreed to in writing by 10) Business Days following the date of receipt of such Net Cash Proceeds. The Administrative Agent will promptly notify each Term Lender of the contents of the Company’s prepayment notice and among Lenders); (provided that any of such Term Lender’s pro rata share of the prepayment. Each Term Lender may decline reject all or a portion of its pro rata share of any such mandatory prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”) of Term Loans required to be made pursuant to clauses (i) through (iii) of this Section 2.11(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 p.m. (New York time) one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term 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 such failure will be deemed an acceptance of the total amount of such Lender’s pro rata share of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the Dollar Amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their pro rata share of such Declined Proceeds, any Declined Proceeds remaining thereafter (the “Retained Declined Proceeds”) shall be retained by the Company and used for any purpose not otherwise prohibited by this Agreement. The Administrative Agent may make appropriate adjustments to the accounts of the Term Lenders to reflect any non pro rata payment of Term Loans of any Class as a result of this Section 2.11(b)(iv).
(v) Notwithstanding any other provisions of this Section 2.11(b) to the contrary, (i) to the extent that any of or all the Net Cash Proceeds of any Asset Sale pursuant to Section 6.11(j) or (k) by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.11(b)(ii) (a “Foreign Disposition”), the Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”), or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by applicable local Law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.11(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Law will not permit or delays repatriation to the United States (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable 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 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 2.11(b) to the extent provided herein and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition, any Foreign Casualty Event or Excess Cash Flow would have adverse tax consequences, the Net Cash Proceeds or Excess Cash Flow so affected may be retained by the applicable Foreign Subsidiary, provided that, in the case of this clause (ii), on or before the date 24 months following the date of receipt of such Net Cash Proceeds or the date on which case Excess Cash Flow so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.11(b), (x) the Declined Amount Company shall apply 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 Company 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 calculated if received by such Foreign Subsidiary) or (y) such Net Cash Proceeds or Excess Cash Flow shall be distributed applied to the prepaymentrepayment of Indebtedness of a Foreign Subsidiary.
(vi) Each prepayment of Term Loans pursuant to this Section 2.11(b) shall be applied, subject to Section 2.11(b)(iv), pro rata to each Class of Term Loans and shall be further applied to such Class of Term Loans, first in direct order of maturity to repayments thereof required pursuant to Section 2.10(b) in the 24-month period following the date such prepayment becomes payable and second ratably to the remaining repayments of Term Loans of such Class required pursuant to Section 2.10(b); and each such prepayment of any Class of Term Loans shall be offered to the Lenders holding such Term Loans on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each .
(vii) Any prepayment of the Term Loans under pursuant to this Section 2.6 2.11(b) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower extent required by Section 2.13 and shall also pay any amounts owing pursuant be subject to Section 22.16.
Appears in 1 contract
Sources: Credit Agreement (Mylan Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) If the Debt to Operating Cash Flow Ratio as of the last day of any Fiscal Year beginning with Fiscal Year 2001 is equal to or greater than 5.5x, then no later than the next April 30, the Borrower shall prepay an outstanding principal amount of the Term Loan A Advances equal to the Allocable Portion of 75% of Excess Cash Flow for such Fiscal Year. If the Debt to Operating Cash Flow Ratio as of the last day of any Fiscal Year is less than 5.5x but greater than or equal to 5.0x, then no later than the next April 30, the Borrower shall prepay an outstanding principal amount of the Term Loan A Advances equal to the Allocable Portion of 50% of Excess Cash Flow for such Fiscal Year. In each case, the Borrower shall pay the principal amount to be prepaid together with accrued interest thereon to the date of prepayment and all amounts then owing under Section 2.12 in respect of such prepayment and such prepayment shall be applied to reduce ratably all then remaining unpaid installments of principal of the Term Loan A Advances (based on the schedule set forth in Section 2.04, as the amounts therein may have been reduced from time to time, in accordance with this Agreement, due to repayments and prepayments of principal prior thereto). For purposes of this Section 2.09(b): (x) 50% Excess Cash Flow for any Fiscal Year shall be determined on the basis of the net cash proceeds received by amount of Excess Cash Flow for such Fiscal Year set forth on the Borrower in connection with certificate delivered to the Classmates IPO Lenders pursuant to Section 5.03(t); and (y) $30,000,000 Excess Cash Flow shall be determined using an amount for Operating Cash Flow that is calculated in accordance with the definition thereof but excluding any Total Cost Savings Add-Back (as defined in the definition of Operating Cash Flow).
(ii) If on any date the Borrower receives the Net Proceeds of any issuance of equity securities (including, without limitation, any common stock, preferred stock, rights to subscribe for or to purchase, or any warrants or options to acquire any equity security or any instrument convertible into any equity security), then no later than the fourth Eurodollar Business Day after such date of issuance, the Borrower shall repay an outstanding principal amount of the Term Loan A Advances equal to the Allocable Portion of such Net Proceeds, provided that (A) if on or before such date of issuance the Borrower has entered into an agreement or letter of intent to make an Asset Purchase that it reasonably expects will be a Permitted Acquisition that will be consummated within 16 weeks of such date, the Borrower may defer making such repayment (to the extent of the estimated cash portion of the purchase price for such Permitted Acquisition) until the earlier of the date it consummates such Permitted Acquisition and the date 16 weeks after such date of issuance, and the principal amount of Term Loan A Advances required to be repaid shall be the Allocable Portion of the excess of such Net Proceeds (less any amount repaid concurrently with such date of issuance on account of such Net Proceeds) over the cash portion of the purchase price actually paid for such Permitted Acquisition by such date and (B) if at the date of such issuance (1) the Senior Debt to Operating Cash Flow Ratio is less than 2.0x and (2) the Borrower is in good faith considering making a redemption of any Permitted Subordinated Debt within the next 12 weeks, the Borrower may defer making such repayment (to the extent of the estimated amount to be applied to such redemption) until the earlier of the date it makes such redemption and the date 12 weeks after such date of issuance, and the principal amount of Term Loan A Advances required to be repaid shall be the Allocable Portion of the excess of such Net Proceeds (less any amount repaid concurrently with such date of issuance on account of such Net Proceeds) over the amount actually applied to redeem Permitted Subordinated Debt by such date. In any case, the Borrower shall pay the principal amount to be prepaid together with accrued interest thereon to the date of prepayment and all amounts then owing under Section 2.12 in respect of such prepayment and such prepayment shall be applied to reduce ratably all then remaining unpaid installments of principal of the Term Loan A Advances (based on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as schedule set forth in Section 2.6(c2.04, as the amounts therein may have been reduced from time to time, in accordance with this Agreement, due to repayments of principal prior thereto).
(biii) If, for on the date the Borrower shall issue any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowPermitted Subordinated Debt (other than any Refinancing Permitted Subordinated Debt), the Borrower shall, on the relevant Excess Senior Debt to Operating Cash Flow Application Date, apply 50% Ratio (measured on such date after giving effect to the issuance of such Excess Cash Flow toward Permitted Subordinated Debt and the prepayment receipt of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”Net Proceeds thereof), in which case the Declined Amount shall be distributed is greater than or equal to the prepayment2.0x, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to then within four Eurodollar Business Days after the date of on which the Borrower shall issue such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretoPermitted Subordinated Debt, the Borrower shall also pay any amounts owing pursuant to Section 2.prepay an outstanding principal amount of the Term Loan A Advances equal to
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation Net Proceeds of the Classmates IPOAssets Sales (and proceeds from, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower or otherwise generated in connection with with, the Classmates IPO and (ymonetization of proceeds from a Patent Monetization Program) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the to prepay outstanding Loans in accordance with Section 2.13(d)(i) or (d)(ii), as applicable, as and other amounts as set forth in when required by Section 2.6(c)6.04.
(b) If, for any fiscal quarter of Borrower beginning No later than five Business Days after the date on which the financial statements with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrespect to such period are delivered pursuant to Section 5.04(a), the Borrower shall, on the relevant shall prepay outstanding Loans in accordance with Section 2.13(d) in an aggregate principal amount equal to (A) 50% of Excess Cash Flow Application Dateof Parent and its Restricted Subsidiaries for the fiscal year then ended minus (B) voluntary prepayments of Loans under Section 2.12 during such fiscal year to the extent not funded with Indebtedness and only to the extent that the Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness; provided that if, apply 50as of the last day of the most recently ended fiscal year of Parent, the Secured Indebtedness Leverage Ratio (determined for any such period by reference to the certificate delivered pursuant to Section 5.04(a)(iii) calculating the Secured Indebtedness Leverage Ratio as of the last day of such fiscal year of Parent and its Restricted Subsidiaries) shall be (x) 2.25:1.00 or less, the Borrower shall only be required to make the prepayments otherwise required under this clause (b) for such fiscal year in an amount equal to (1) 25% of such Excess Cash Flow toward the prepayment minus (2) voluntary prepayments of the Loans and other amounts as set forth in under Section 2.6(c). Each 2.12 during such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding to the foregoing extent not funded with Indebtedness and without duplication under only to the definition extent that the Indebtedness so prepaid by its terms cannot be reborrowed or redrawn and such prepayments do not occur in connection with a refinancing of Excess Cash Flowall or any portion of such Indebtedness, or (y) 1.50:1.00 or less, the amount of Loans Borrower shall not be required to be repaid pursuant to make any such prepayments otherwise required under this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarteryear.
(c) Amounts to be applied in connection with prepayments made No later than five Business Days after the date of receipt by the Borrower, Parent or any of its Restricted Subsidiaries of any Net Proceeds from the issuance or incurrence of Indebtedness (other than Indebtedness permitted pursuant to Section 2.6 6.03), the Borrower or Parent shall apply (or cause to be applied, to the prepayment ) 100% of the Net Proceeds received with respect thereto to prepay outstanding Loans in accordance with Section 2.12(b2.13(d)(i).
(i) Mandatory prepayments of outstanding Loans under this Agreement (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline other than any such prepayment (collectivelyprepayments with Net Proceeds of Asset Sales, but including prepayments with Net Proceeds of Asset Sales constituting casualties or condemnations) shall be applied pro rata among the US Term Loans, the “Declined Amount”)Euro Term Loans and the Asset Sale Loans, in which case the Declined Amount shall be distributed to the prepayment, and further applied on a pro rata basisbasis to scheduled amortization payments thereof in direct order of maturity to the next eight scheduled amortization payments thereof and then pro rata to the remaining scheduled amortization payments thereof, and (ii) mandatory prepayments of outstanding Loans under this Agreement with Net Proceeds of Asset Sales (other than any such prepayments with Net Proceeds of Asset Sales constituting casualties or condemnations) shall be applied, first, to the Asset Sale Loans and, second, pro rata to the US Term Loans and the Euro Term Loans.
(e) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment Borrower setting forth in reasonable detail the calculation of the Loans under Section 2.6 shall be accompanied by accrued interest to the date amount of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.and
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Mandatory Prepayments. (a) Upon In the consummation event of any termination of all the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowRevolving Credit Commitments, the Borrower shall, on the relevant Excess date of such termination, repay or prepay all its outstanding Revolving Credit Borrowings and replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the Borrower shall, on the date of such reduction or at such other time, repay or prepay Revolving Credit Borrowings and, after the Revolving Credit Borrowings shall have been repaid or prepaid in full, replace or cause to be canceled (or make other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank with respect to) Letters of Credit, in each case in an amount sufficient to eliminate such excess.
(b) Not later than the third Business Day following the receipt of Net Cash Flow Application DateProceeds in respect of any Asset Sale, the Borrower shall apply 50100% of such Excess the Net Cash Flow toward the prepayment of the Proceeds received with respect thereto to prepay outstanding Term Loans and other amounts as set forth in accordance with Section 2.6(c2.13(e). Each ; provided that no such prepayment shall be made on a date (an “Excess required with respect to Net Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid Proceeds received pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterStamford Store Lease-Back Transaction.
(c) Amounts No later than the earlier of (i) 120 days after the end of each fiscal year of Holdings, commencing with the fiscal year ending on March 31, 2013, and (ii) the date on which the financial statements with respect to be applied in connection with prepayments made such period are delivered pursuant to Section 2.6 5.04(a), the Borrower shall be applied, to the prepayment of the prepay outstanding Term Loans in accordance with Section 2.12(b2.13(e) in an aggregate principal amount equal to (A) if the Total Leverage Ratio as of the end of the fiscal year then ended is (1) greater than 5.00 to 1.00, 50% of Excess Cash Flow for the fiscal year then ended, (2) less than or equal to 5.00 to 1.00 but greater than 4.00 to 1.00, 25% of Excess Cash Flow for the fiscal year then ended and (3) less than or equal to 4.00 to 1.00, 0% of Excess Cash Flow for the fiscal year then ended, in each case minus (B) (unless otherwise agreed to in writing by x) Voluntary Prepayments and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, y) repayments of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Revolving Loans under Section 2.6 2.12 during such fiscal year, but only to the extent that the Revolving Credit Commitments are, concurrently with such repayments, permanently reduced and terminated; provided that such Voluntary Prepayments and repayments do not occur in connection with a refinancing of all or any portion of the Indebtedness so prepaid or repaid.
(d) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the issuance or incurrence 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 third Business Day next following) the receipt of such Net Cash Proceeds by such Loan Party or such subsidiary, apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding Term Loans in accordance with Section 2.13(f).
(e) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated pro rata between the Term Loans and the Other Term Loans and applied pro rata against the remaining scheduled installments of principal due in respect of the Term Loans and the Other Term Loans under Sections 2.11(a)(i) and (ii), respectively.
(f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least four days’ prior irrevocable 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. All prepayments of Borrowings under this Section 2.13 shall be subject to Section 2.16, but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2payment.
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Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Lead Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending September 30, 2016, the Lead Borrower shall prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) 50% of Excess Cash Flow of the Lead Borrower and its Restricted Subsidiaries for the Fiscal Year then ended, minus (B) at the option of the Lead Borrower, the aggregate principal amount of (x) 50% any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date, and (y) the amount of any reduction in the net cash proceeds received by outstanding amount of any Initial Term Loans or Additional Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction), in each case under this clause (y) prior to such date and based upon the Borrower actual amount of Cash paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Lead Borrower or its Restricted Subsidiaries); provided that (1) such percentage of Excess Cash Flow shall be reduced to (I) 25% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 2.00 to 1.00, but greater than 1.50 to 1.00 and (yII) $30,000,000 0% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 1.50 to 1.00 and (2) no prepayment under this Section 2.11(b)(i) shall be applied on required to the extent that the amount thereof would not exceed $50,000,000.
(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, in each case, in excess of $50,000,000 in any Fiscal Year (provided, however, that the aggregate principal amount of excluded Prepayment Asset Sales shall not exceed $175,000,000 in any Fiscal Year), the Lead Borrower shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) below; provided that if, prior to the date any such prepayment is required to be made, the Lead Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Classmates IPO toward Lead Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Lead Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within 15 months following receipt thereof or (B) the Lead Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 15-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 15-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Lead Borrower shall promptly prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Lead Borrower or any of its Restricted Subsidiaries is required to offer to repay or repurchase any other Indebtedness permitted hereunder to be secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the Subject Proceeds (such Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Initial Term Loans and other amounts as set forth Additional Term Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that 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 Initial Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Initial Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.6(c)2.11(b)(ii) shall be reduced accordingly; provided, further, that 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 such rejection) be applied to prepay the Initial Term Loans and Additional Term Loans in accordance with the terms hereof.
(biii) IfIn the event that the Lead Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Lead Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for any fiscal quarter except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of Borrower beginning the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrequirements of Section 9.02(c)), the Lead Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Lead Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Lead Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary, apply 50% the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Lead Borrower of any such amount would be prohibited under any Requirement of Law or conflict with the fiduciary duties of such Excess Cash Flow toward 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 (the prepayment Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation); it being understood that once the repatriation of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, 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 Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)) and (B) if the Lead Borrower determines in good faith that the repatriation to the Lead Borrower of any amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in material and adverse tax consequences, 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 Lead Borrower, the amount the Lead Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the Lead Borrower the Restricted Amount without incurring such material and adverse tax liability; provided that to the extent that the repatriation of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be repaid made by the Lead Borrower pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied2.11(b), to the prepayment decline all (but not a portion) of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any its Applicable Percentage of such prepayment (collectivelysuch declined amounts, solely to the extent not applied to any other Indebtedness of the Lead Borrower or its subsidiaries as a mandatory prepayment of such Indebtedness, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Lead Borrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If any Lender fails to deliver a notice to 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 Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be distributed applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that (x) any prepayment of Initial Term Loans or Additional Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans and (y) at the election of the Lead Borrower, notwithstanding the foregoing, each prepayment of Initial Term Loans and Additional Term Loans with the proceeds of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds pursuant to Section 2.11(b)(ii) may be applied first, to prepayments of each Class of Term Loans other than Euro Term Loans made available pursuant to the prepaymentEuro Term Loan Facility on the Closing Date and second, to prepayments of Euro Term Loans made available pursuant to the Euro Term Loan Facility on the Closing Date), (B) with respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be applied against the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as directed by the Lead Borrower (or, in the absence of direction from the Lead Borrower, to the remaining scheduled amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity), and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be applied on a pro rata basis, basis to the then outstanding Initial Term Loans and Additional Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or Eurocurrency Rate Loans; provided that the amount thereof shall be applied first to ABR Loans held to the full extent thereof before application to the Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by Lenders the Lead Borrower pursuant to Section 2.16. Any prepayment 2017 Replacement USD Term Loans made on or prior to the date that have elected is six months after the Third Amendment Effective Date pursuant to accept such Declined Amounts. Each prepayment Section 2.11(b)(iii) as part of the Loans under Section 2.6 a Repricing Transaction shall be accompanied by accrued interest the fee set forth in Section 2.12(f).
(vii) In the event that the Aggregate Dollar Revolving Credit Exposure exceeds the Total Dollar Revolving Credit Commitment then in effect, the Lead Borrower shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Dollar Revolving Loans and/or reduce the Dollar LC Exposure in an aggregate amount sufficient to reduce such Aggregate Dollar Revolving Credit Exposure as of the date of such payment to an amount not to exceed the Total Dollar Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine at its sole discretion: (A) prepayment on of Dollar Revolving Loans or (B) with respect to the excess Dollar LC Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Dollar Letters of Credit, in each case, in an amount equal to 100% of such excess Dollar LC Exposure (minus the amount prepaid; provided, then on deposit in the LC Collateral Account). In the event that if a Eurodollar Loan is prepaid on any day other than the last day of Aggregate 2020 Dollar Revolving Credit Exposure exceeds the Interest Period applicable theretoTotal 2020 Dollar Revolving Credit Commitment then in effect, the Lead Borrower shall also pay any amounts owing pursuant to Section 2.shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the 2020 Dollar Revolving Loans in an a
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Mandatory Prepayments. (ai) Upon If at any time the consummation outstanding balance of the Classmates IPORevolving Loan exceeds the lesser of (A) the Revolving Loan Commitment and (B) the Borrowing Base, an amount equal to: Borrower shall immediately repay the aggregate outstanding Revolving Credit Advances to the extent required to eliminate such excess.
(ii) Immediately upon receipt by any Credit Party or any Foreign or Domestic Subsidiary of any Credit Party of (i) the greater proceeds of any Asset Disposition by such Credit Party or such Subsidiary (x) 50% of the net cash excluding proceeds received by CF Delaware from any sales of accounts receivables and related rights made prior to an Incipient Termination Event or a Termination Event by CF Delaware to the Receivables Subsidiary pursuant to the Receivables Sale and Contribution Agreement) other than the proceeds from any single Asset Disposition not in excess of $100,000, or (ii) the proceeds of any sale of Stock of any Credit Party or any Foreign or Domestic Subsidiary of any Credit Party, Borrower shall prepay the Loans in an amount equal to all such proceeds, net of (A) commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Borrower in connection with therewith (in each case, paid to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior Liens (to the Classmates IPO extent such Liens constitute Permitted Encumbrances hereunder), if any, and (yD) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth an appropriate reserve for income taxes in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth GAAP in Section 2.6(c)connection therewith. Each Any such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b1.2(c) below.
(unless otherwise agreed to in writing by and among Lenders); iii) If any Credit Party or any Foreign or Domestic Subsidiary of any Credit Party (provided that i) issues any Lender may decline Stock or debt securities, or (ii) incurs any such prepayment (collectivelyFunded Debt, no later than the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to Business Day following the date of receipt of the proceeds thereof, Borrower shall prepay the Loans in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs paid to non-Affiliates in connection therewith. Any such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to be applied in accordance with Section 21.2(c) below.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation The provisions of Section 4.4(a) of the Classmates IPOAmended and Restated Notes Forbearance Agreement are hereby incorporated herein by reference as if made in favor of Administrative Agent and each Bank in all respects; provided, an amount equal to: (ihowever, any such payment under this Section 13(a) the greater is without duplication of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and any other amounts as set forth in payment required under this Section 2.6(c)13 or any other Loan Document.
(b) IfOn each Excess Cash Payment Date (as defined below), Borrower will pay to the Collateral Agent, for the ratable benefit of the Banks, an amount equal to the Banks’ ratable share (in accordance with Sections 3(b) and 7(a) of the Intercreditor Agreement) of Excess Cash (as defined below); provided, however, (i) any fiscal quarter payment of Excess Cash will be without duplication of any other mandatory prepayment required under this Section 13 or any other Loan Document including any mandatory prepayment required under the Loan Documents with respect to proceeds which are also included in the calculation of Excess Cash. As used herein, “Excess Cash” shall mean, with respect to any calendar month, Cash of Borrower beginning with as of the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% last day of such Excess Cash Flow toward calendar month as reflected in the prepayment Borrower’s draft monthly financial statements for such month required to be delivered pursuant to Section 3(e) hereof (exclusive of the Loans amounts included therein with respect to deposits in Borrower’s clearing account and other amounts accounts where Borrower is acting as set forth the custodian or in Section 2.6(c). Each a fiduciary capacity for the Cash maintained in such prepayment shall be made on a date (an accounts) in excess of $55 million; and “Excess Cash Flow Application Payment Date”) no later than 45 days after each fiscal quarter end for ” shall mean, with respect to any calendar month, the first three fiscal quarters and 90 days in Business Day after the case of date that the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans draft monthly financial statements for such calendar month are required to be repaid delivered pursuant to this clause Section 3(e) hereof, commencing with the first Business Day after the date that the draft monthly financial statements for October 2009 are required to be delivered (b) for any fiscal quarter the “October Excess Cash Payment”); provided, that the October Excess Cash Payment shall be reduced on a dollar for dollar-for-dollar basis by the amount of optional the prepayment made under Section 9(d) hereof. Any prepayments of Loans made pursuant to Excess Cash under this Section 2.5 during such fiscal quarter.
(c13(b) Amounts will be deemed to be applied in connection with voluntary prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2principal for all purposes.
Appears in 1 contract
Sources: Forbearance Agreement (National Consumer Cooperative Bank /Dc/)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2017, the Borrower shall prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) 50% of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Fiscal Year then ended, minus (B) at the option of the Borrower, the aggregate principal amount of (x) 50% any Initial Term Loans, Additional Term Loans, Additional Revolving Loans prepaid pursuant to Section 2.11(a) or ABL Loans prior to such date and (y) the amount of any reduction in the net outstanding amount of any Initial Term Loans or Additional Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to such date and based upon the actual amount of cash proceeds received by the Borrower paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Additional Revolving Loans or ABL Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries); provided that (I) such percentage of Excess Cash Flow shall be reduced to 25% of Excess Cash Flow if the Senior Secured Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 3.50 to 1.00, but greater than 3.00 to 1.00 and (yII) such prepayment shall not be required if the Senior Secured Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 3.00 to 1.00.
(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, in each case, in excess of $30,000,000 20,000,000 in any Fiscal Year, the Borrower shall be applied on apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) below; provided that if, prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Classmates IPO toward Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within 12 months following receipt thereof, (B) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 12-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided further that if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to offer to repay or repurchase any other Indebtedness secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the Subject Proceeds (such Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Initial Term Loans and other amounts Additional Term Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that 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 Initial Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Initial Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly; provided further that 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 such rejection) be applied to prepay the Initial Term Loans and Additional Term Loans in accordance with the terms hereof and (C) if at any time such prepayment would be required hereunder with respect to any ABL Collateral at any time when any ABL Facility is in effect, the Net Proceeds of any such Prepayment Asset Sale or Net Insurance/Condemnation Proceeds that relate or are attributable to any such ABL Collateral shall not be required to be applied to the prepayment of the Initial Term Loans hereunder to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are required to repay the ABL Loans in order to remain in compliance with the “Borrowing Base” (as set forth defined in Section 2.6(cthe ABL Credit Agreement (or any equivalent term in any documentation governing any ABL Facility)) under the ABL Credit Agreement (or any documentation governing any ABL Facility).
(biii) IfIn the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for any fiscal quarter except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of Borrower beginning the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p), Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrequirements of Section 9.02(c) or other refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans), the Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and Additional 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)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary, apply 50% the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, or the relevant Net Insurance/Condemnation Proceeds are received by 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 Requirements of 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, member of management or consultant of such Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation); it being understood that once the repatriation of the relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, is permitted under the applicable Requirements of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, 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 Initial Term Loans and Additional 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 Sections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the distribution to the Borrower of such Excess Cash Flow toward or Subject Proceeds would be prohibited under the prepayment of Organizational Documents governing such joint venture; it being understood that if the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “relevant prohibition ceases to exist the relevant joint venture will promptly distribute the relevant Excess Cash Flow Application Date”) no or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than 45 days two Business Days after each fiscal quarter end for such distribution) applied to the first three fiscal quarters and 90 days in the case repayment of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Term Loans required to be repaid pursuant to this clause Section 2.11(b) to the extent required herein, and (bC) for if the Borrower determines in good faith that the repatriation to the Borrower of any fiscal quarter shall be reduced on a dollar for dollar basis by amounts required to mandatorily prepay the amount of optional prepayments of Initial Term Loans made and Additional Term Loans pursuant to Section 2.5 during such fiscal quarter.
2.11(b)(i) or (cii) Amounts to be applied above would result in material and adverse tax consequences, taking into account any foreign tax credit or benefit actually realized in connection with prepayments made pursuant to Section 2.6 shall be appliedsuch repatriation (such amount, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the a “Declined Restricted Amount”), in which case as reasonably determined by the Declined Amount shall be distributed to the prepaymentBorrower, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing be required to mandatorily prepay pursuant to Section 2.to
Appears in 1 contract
Sources: Term Loan Credit Agreement (PQ Group Holdings Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than 95 days after the greater end of each fiscal year of Parent (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning commencing with the fiscal quarter year ending March December 31, 2009, there shall be Excess Cash Flow2011), the Borrower shall, on shall apply an amount in accordance with Section 2.10(b)(iv) in an aggregate amount equal to (A) the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition ECF Percentage of Excess Cash Flow, if positive, for the amount fiscal year covered by such financial statements minus (B) the sum of (x) all voluntary prepayments of Term Loans required to be repaid during such fiscal year pursuant to this clause Section 2.10(a) and (by) for any all voluntary prepayments of Revolving Loans during such fiscal quarter shall be year pursuant to Section 2.10(a) to the extent the Revolving Commitments are permanently reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterpayments.
(cii) Amounts (A) If Parent or any Subsidiary receives any Net Cash Proceeds from any Asset Sale or Casualty Event, the Borrower shall apply an amount equal to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment 100% of the Loans such Net Cash Proceeds in accordance with Section 2.12(b2.10(b)(v) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds; provided that no such prepayment shall be required pursuant to this Section 2.10(b)(ii)(A) with respect to such Net Cash Proceeds that Parent or any Subsidiary shall reinvest in accordance with Section 2.10(b)(ii)(B); provided that (x) this clause shall not apply to any Asset Sale made in reliance on Section 6.11(l); and (y) to the amount prepaid; provided, extent required by the terms of any Permitted Secured Notes that if a Eurodollar Loan is prepaid on any day other than are secured by Liens subject to the last day of the Interest Period applicable theretoFirst Lien Intercreditor Agreement, the Borrower shall also pay may, in lieu of prepaying Term Loans with such portion of the Net Cash Proceeds of any Asset Sale or Casualty Event, apply a portion of such Net Cash Proceeds (based on the respective principal amounts owing pursuant at such time of (A) such Permitted Secured Notes and (B) the Term Loans) to Section 2repurchase or redeem Permitted Secured Notes that are secured by Liens subject to the First Lien Intercreditor Agreement with the remaining amount of such Net Cash Proceeds to be applied to prepay Term Loans.
Appears in 1 contract
Mandatory Prepayments. (aA) Upon In connection with any sale or disposition of a Portfolio Asset pursuant to Section 5, unless the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash Administrative Agent has agreed in writing that such proceeds received by the Borrower may be used in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made Reinvestment pursuant to Section 2.5 during such fiscal quarter.
5(d), the applicable Borrower Party shall, upon three (c3) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, Business Days’ notice to the prepayment of the Administrative Agent, use such sale or disposition proceeds to prepay one or more outstanding Loans in accordance with Section 2.12(b) (unless otherwise agreed to whole, or in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepaymentpart, on a pro rata basisany Business Day, together with accrued and unpaid interest in respect of the such Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to through (but excluding) the date of such prepayment on the amount prepaidand, if applicable, any related Breakage Costs; provided, that if instead of prepaying a Eurodollar Loan is prepaid immediately with such proceeds the Borrower Parties may deposit the proceeds into the applicable Prepayment Reserve Account and effect such prepayment on any day other than or before the last day end of the applicable Interest Period applicable theretoAccrual Period.
(B) On or before each of (1) the day that is (x) if the Conversion Date occurs as a result of clause (ii) of the definition of “Revolving Period”, the CLO Takeout Amortization Date, or (b) otherwise, 6 calendar months after the Conversion Date (or, if such day is not a Business Day, the immediately succeeding Business Day) and (2) the Outside Settlement Date (each, a “Target Date”), the Borrower Parties shall also pay prepay one or more outstanding Loans in whole, or in part, together with accrued and unpaid interest in respect of such Loans through (but excluding) the date of such prepayment and, if applicable, any amounts owing pursuant related Breakage Costs on any one or more Business Days prior to Section 2each Target Date in an amount equal to or greater than, in the aggregate, the Scheduled Principal Payment Amount for the related Target Date, such that the Outstanding Principal Amount of the Loans as of such Target Date shall be no greater than the Scheduled Targeted Principal Balance for such date.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)
Mandatory Prepayments. (a1) Upon No later than the consummation fifth (5th) Business Day after the date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or around December 31, 2022, the Borrower shall prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to: to (iA) the greater Required Excess Cash Flow Percentage of (x) 50% Excess Cash Flow of the net cash proceeds received Borrower and its Restricted Subsidiaries for the Calculation Period then ended, minus (B) $10.0 million minus (C) unless otherwise elected by the Borrower (in which case any such amount shall be deducted from the calculation of Excess Cash Flow instead), the aggregate principal amount optionally or voluntarily Prepaid (to the extent permitted under this Agreement and without duplication of the amount thereof applied to reduce the ECF Prepayment Amount in the prior Fiscal Year) prior to such date of (1) any Initial Loans, any other Term Loans, Incremental Equivalent Debt or any Additional Revolving Loans prepaid pursuant to Section 2.11(a), any ABL Loans and any Permitted Senior Secured Debt, and (2) any Replacement Notes, based upon the actual amount of cash paid in connection with the Classmates IPO relevant assignment or purchase, except, in each case, to the extent financed with Long-Term Funded Indebtedness; provided that, in each case, with respect to the ABL Facility, the Initial Delayed Draw Term Facility, any Incremental Revolving Facility and any Replacement Revolving Facility, to the extent accompanied by a permanent reduction in the relevant commitment, minus (D) all Cash payments in respect of capital expenditures as would be reported in the Borrower’s consolidated statement of cash flows made during such Calculation Period and, at the option of the Borrower, in the case of any Calculation Period, any Cash payments in respect of any such capital expenditures made prior to the date of the Excess Cash Flow payment in respect of such Calculation Period, except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (E) Cash payments made during such Calculation Period (or, at the option of the Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the applicable Excess Cash Flow payment) in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 (including Investments in joint ventures, but excluding Investments in (x) Cash and Cash Equivalents and (y) $30,000,000 shall the Borrower or any of its Restricted Subsidiaries), except, in each case, to the extent financed with Long-Term Funded Indebtedness. Notwithstanding the foregoing, (I) if at the time that any such prepayment would be applied required, the Borrower (or any other Restricted Subsidiary of the Borrower) is also required to Prepay any Indebtedness that is secured on a pari passu basis with the First Priority Secured Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so Prepaid, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the date basis of the Classmates IPO toward the prepayment aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time) to the Prepayment of such Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof and (II) to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (unless such other amounts as set forth in Section 2.6(capplication is otherwise permitted hereunder).
(b2) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no No later than 45 days after the fifth (5th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds (in each fiscal quarter end for the first three fiscal quarters and 90 days case, excluding Net Proceeds attributable to ABL Priority Collateral), in each case, in excess of $25.0 million in the case of the fourth quarter of aggregate in any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash FlowFiscal Year (in each case, the amount of such excess, the “Subject Proceeds”; provided that, any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds the Net Proceeds of which are less than $15.0 million with respect to any single event or transaction (or series of related events or transactions) shall not be subject to this Section 2.11(b)(ii)), the Borrower shall apply an amount equal to 100% of such Subject Proceeds to prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) below; provided, that if, prior to the date any such prepayment is required to be repaid pursuant made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Borrower or any of its Restricted Subsidiaries, then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (bii) for in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within fifteen (15) months following receipt thereof or (B) the Borrower or any fiscal quarter of its Restricted Subsidiaries has committed to so reinvest the Subject Proceeds during such 15-month period and the Subject Proceeds are so reinvested within six (6) months after the expiration of such 15-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that (x) if, at the time that any such prepayment would be reduced required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay (or offer to repay or repurchase) any Other Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a dollar for dollar pro rata basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Subject Loans and to the Prepay of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount)), provided, further, that 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 Term Loans in accordance with Section 2.12(bthe terms hereof, and (y) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may the extent the holders of the Other Applicable Indebtedness decline any to have such prepayment (collectivelyOther Applicable Indebtedness Prepaid, the “Declined Amount”), declined amount shall promptly (and in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to any event within ten (10) Business Days after the date of such prepayment on rejection) be applied to prepay the amount prepaidSubject Loans in accordance with the terms hereof; provided, further, that the foregoing percentage of Subject Proceeds shall be reduced to (x) if a Eurodollar the First Lien Leverage Ratio is less than or equal to 2.75:1.00 but greater than 2.25:1.00, 50%, and (y) if the First Lien Leverage Ratio is less than or equal to 2.25:1.00, 0%. Notwithstanding anything to the contrary herein or in any other Loan is prepaid on Document, the Net Proceeds of any day other than Disposition of any ABL US Priority Collateral shall not be required to be applied to the last day prepayment of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Initial Term Loans hereunder.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Hillman Solutions Corp.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2018, the Borrower shall prepay the outstanding principal amount of Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) 50% the aggregate principal amount of any voluntary prepayment, repurchase, redemption or other retirement of any First Lien Debt pursuant to Section 2.11(a) of this Agreement (or, with respect to any First Lien Debt other than any Loan, the corresponding provision of the net cash proceeds received documentation governing any other First Lien Debt) prior to such date, (y) the aggregate principal amount of any voluntary prepayment, repurchase, redemption or other retirement of any Second Lien Debt pursuant to Section 2.11(a) of the Second Lien Credit Agreement (or, with respect to any Second Lien Debt other than any Loan (as defined in the Second Lien Credit Agreement), the corresponding provision of the documentation governing any other Second Lien Debt) (to the extent the relevant voluntary prepayment, repurchase, redemption or other retirement is permitted by the Borrower terms of this Agreement) prior to such date and (z)
(1) the amount of any reduction in the outstanding amount of any First Lien Debt resulting from any assignment permitted or not restricted by this Agreement (including in connection with any Dutch Auction) and/or (2) to the extent permitted by the terms of this Agreement, the amount of any reduction in the outstanding amount of any Second Lien Debt that is permitted under this Agreement Table of Contents (including in connection with any Dutch Auction (as defined in the Second Lien Credit) Agreement (or the equivalent term in the documentation governing any other Second Lien Debt)) prior to the date such payment is due and, in each case under this clause (z), based upon the actual amount of cash paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayment made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other long-term funded Indebtedness (yother than revolving Indebtedness) $30,000,000 of the Borrower or its Restricted Subsidiaries); provided that no prepayment under this Section 2.11(b) shall be applied required unless and to the extent that the amount thereof exceeds $5,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary of the Borrower) is also required to prepay any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the date basis of the Classmates IPO toward the prepayment aggregate outstanding principal amount of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application DateOther Applicable Indebtedness at such time; provided, apply 50% that the portion of such Excess Cash Flow toward ECF Prepayment Amount allocated to the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment Other Applicable Indebtedness shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, not exceed the amount of Loans such ECF Prepayment Amount required to be repaid allocated to the Other Applicable Indebtedness pursuant to this clause (b) for any fiscal quarter the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be reduced on a dollar for dollar basis by allocated to the amount of optional prepayments of Term Loans made pursuant to Section 2.5 during such fiscal quarter.
(cin accordance with the terms hereof) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Term Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of 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 Term Loans in accordance with Section 2.12(bthe terms hereof.
(ii) (unless otherwise agreed 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, in each case, in excess of $7,500,000 in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in writing by and among Lenders); (provided that any Lender may decline any excess of such prepayment threshold (collectively, the “Declined AmountSubject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in the business of the Borrower and/or any subsidiary (other than in Cash or Cash Equivalents), then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in which case respect of the Declined Amount shall be distributed Subject Proceeds to the prepaymentextent (x) the Subject Proceeds are so reinvested within 450 days following receipt thereof, or (y) the Borrower or any subsidiary has committed to so reinvest the Subject Proceeds during such 450- day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 450-day 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 (without regard to the immediately preceding proviso) 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 repay or repurchase any Other Applicable Indebtedness (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basisbasis 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 Proceeds allocated to the Other Applicable Indebtedness shall not exceed Table of Contents 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 held by Lenders that have elected to accept such Declined Amounts. Each in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans under that would have otherwise been required pursuant to this Section 2.6 2.11(b)(ii) shall be accompanied by accrued interest 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 such prepayment on rejection) be applied to prepay the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than Subject Loans in accordance with the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2terms hereof.
Appears in 1 contract
Sources: First Lien Credit Agreement (Shift4 Payments, Inc.)
Mandatory Prepayments. (ai) Upon No later than the consummation fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2023, the Borrower shall prepay the outstanding principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower, its Restricted Subsidiaries and the Consolidated APCs for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) the aggregate principal amount of any Term Loans and/or Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date and (y) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (y), based upon the actual amount of cash paid in connection with the relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries); provided that no prepayment under this Section 2.11(b) shall be required unless and to the extent that the amount thereof exceeds $3,000,000.
(ii) (A) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale, the Borrower shall apply an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and any Incremental Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Net Proceeds in Capital Expenditures or long term capital assets useful to the business of the Borrower and/or any subsidiary and/or Affiliated Practice (as determined by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”good faith), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, then so long as no Event of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretoDefault then exists, the Borrower shall also pay not be required to make a mandatory prepayment under this clause (ii) in respect of the Net Proceeds to the extent the Net Proceeds are so reinvested within 365 days following receipt thereof (or such longer period as the Lender Representative may approve in its sole discretion); it being understood that if the Net 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 Net Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided further that the aggregate amount that may be so reinvested from and after the Second Amendment Effective Date shall not exceed $10,000,000 in any amounts owing pursuant to Section 2Fiscal Year.
Appears in 1 contract
Mandatory Prepayments. In addition to the required payments of principal of the Term Loan set forth in Section 2.08(c) (Repayment of Loans) and any optional payments of principal of the Term Loan and the Revolving Loans and Foreign Currency Loans effected under clauses (a) Upon and (b) above, the consummation Borrower shall make the following required prepayments of the Classmates IPOLoans, each such payment to be made to the Administrative Agent for the benefit of the Lenders within the time period specified below.
(i) The Borrower shall prepay the Loans within 100 days after the last day of each fiscal year of the Borrower, in an amount equal to: to (i) fifty percent (50%) of the greater amount of Excess Cash Flow for such fiscal year less (ii) the aggregate amount of any optional prepayments made by the Borrower pursuant to Section 2.06 (Prepayments) hereof during such fiscal year, the aggregate amount of any optional prepayments of Local Term Loans made by each Local Borrower pursuant to the applicable Local Credit Facility during such fiscal year, the aggregate amount of prepayments made in connection with required reductions of the Aggregate Revolving Credit Commitment during such fiscal year, the aggregate amount of mandatory prepayments of principal of the Term Loan during such fiscal year and the aggregate amount of mandatory prepayments of principal of the Local Term Loans during such fiscal year (or, if earlier than the end of such 100 day period, the date that is ten days after the date on which the Borrower shall have delivered its annual financial statements pursuant to Section 6.01(a) (Financial Statements) for such fiscal year), which payment shall be accompanied by a certificate of a Responsible Officer of the Borrower (which may be incorporated within the Compliance Certificate otherwise required to be delivered under Section 6.02(b) (Certificates; Other Information)) setting forth in reasonable detail the calculations utilized in computing Excess Cash Flow and the amount of such prepayment; provided, however, that (i) if the Total Leverage Ratio is less than 3.00 to 1.00 as at the end of the fiscal year of the Borrower ending on December 31, 2005, the Borrower shall not be required to make the foregoing prepayment for such fiscal year and (ii) for each fiscal year of the Borrower ending on or after December 31, 2006, (x) 50% of if the net cash proceeds received by the Borrower in connection with the Classmates IPO Total Leverage Ratio is less than 3.75:1.00 for such fiscal year, then such percentage shall be reduced to twenty five percent (25%) and (y) if the Total Leverage Ratio is less than 3.00:1.00 for such fiscal year, then such percentage shall be reduced zero.
(ii) Subject to the proviso in Section 7.05(i) (Dispositions), the Borrower shall make, or shall cause each applicable Subsidiary to make, a prepayment in an amount equal to one hundred percent (100%) of the Net Proceeds from (x) each Disposition (other than Dispositions permitted under clauses (a) through (g) and clause (i) of Section 7.05 (Dispositions)) and (y) each Property Loss Event; provided, that the Borrower shall not be required to prepay the Loans with the Net Proceeds from any Disposition permitted under Section 7.05(h) unless and to the extent such Net Proceeds exceed the Dollar Equivalent of $30,000,000 in the aggregate; and provided, further, that the Borrower shall not be required to prepay the Loans with the Net Proceeds from any Disposition disclosed on Schedule 7.05 (Certain Dispositions) unless and to the extent such Net Proceeds exceed the Dollar Equivalent of $40,000,000; and provided, further, that if the Borrower shall have delivered a Reinvestment Notice with respect to such Disposition or Property Loss Event, (I) no prepayment shall be required under this Section 2.06(e)(ii) until the applicable Reinvestment Prepayment Date and (II) on the applicable Reinvestment Prepayment Date, the Borrower shall prepay the Loans (or provide Cash Collateral in respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount applicable to such Reinvestment Event, if any, on the Reinvestment Prepayment Date with respect to such Reinvestment Event, which mandatory prepayment shall be applied on in accordance with the date final paragraph of this Section 2.06; and provided, further, that despite the application of this Section 2.06(e)(ii) to any Disposition that is not otherwise permitted under this Agreement, nothing in this Section 2.06(e)(ii) shall be deemed to permit any Disposition not expressly permitted under this Agreement or to constitute a waiver or cure of any Default or Event of Default that arises as a result of a Disposition that is not permitted under this Agreement.
(iii) The Borrower shall make, or shall cause each applicable Subsidiary to make, a prepayment with respect to each Debt Issuance by the Borrower or any Subsidiary (other than Debt Issuances of the Classmates IPO toward types described in clauses (a), (b), (e), (h), (k) and (n) of Section 7.03 (Indebtedness)) in an amount equal to one hundred percent (100%) of the Net Proceeds of each such Debt Issuance. Each prepayment required to be made pursuant to the foregoing clauses (ii) and (iii) shall be made within ten (10) Business Days of receipt of the applicable Net Proceeds giving rise to such prepayment requirement. The Borrower shall give not less than three (3) Business Days’ prior written notice of any such prepayment to the Administrative Agent, which notice shall include a certificate of a Responsible Officer of the Borrower setting forth in reasonable detail the calculations utilized in computing the applicable Net Proceeds giving rise to such prepayment requirement and the amount of such prepayment. Notwithstanding anything in the preceding sentence to the contrary, if the Borrower shall have delivered a Reinvestment Notice with respect to any Disposition or Property Loss Event, as the case may be, that would otherwise give rise to a mandatory prepayment under Section 2.06(e)(ii), the Borrower shall be required to make a prepayment of the Loans and other amounts as set forth (or provide Cash Collateral in respect of Letters of Credit) in an amount equal to the Reinvestment Prepayment Amount on the applicable Reinvestment Prepayment Date. In the event that the Borrower elects to deliver a Reinvestment Notice with respect to any Disposition or Property Loss Event that would otherwise give rise to a mandatory prepayment under Section 2.6(c2.06(e)(ii).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on shall deliver such Reinvestment Notice to the relevant Excess Cash Flow Application Date, apply 50% Administrative Agent within twenty (20) Business Days of receipt of the Net Proceeds of such Excess Cash Flow toward the prepayment of the Loans and other amounts Disposition or Property Loss Event, as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year endmay be. Notwithstanding the foregoing and without duplication Prepayments made under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (bSection 2.06(e) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied:
(a) first, other than in respect of any prepayment made with the Net Proceeds of a Reinvestment Event prior to the applicable Reinvestment Prepayment Date (but including the Net Proceeds of a Reinvestment Event on the applicable Reinvestment Prepayment Date), to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepaymentrepay, on a pro rata basis, the outstanding principal balance of the Term Loan and the Local Term Loans, until the Term Loan and such Local Term Loans held by Lenders that shall have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidbeen repaid in full; provided, that if notwithstanding anything to the contrary in this clause (a), in the event that the Canadian Borrower is not required to make a Eurodollar mandatory prepayment of the Canadian Term Loans with all or a portion of such Net Proceeds as a result of the operation of Section 2.14 (Withholding Tax) of the Canadian Credit Agreement, the amount of such Net Proceeds that would otherwise have been applied to the mandatory prepayment of such Canadian Term Loans pursuant to this clause (a) shall instead be applied to repay, on a pro rata basis, the outstanding principal balance of the Term Loan is prepaid on any day and the Local Term Loans (other than the last day Canadian Term Loans), until the Term Loan and such other Local Term Loans shall have been repaid in full;
(b) second, to repay the outstanding principal balance of the Interest Period applicable theretoSwing Line Loans, until such Swing Line Loans shall have been repaid in full;
(c) third, to repay the Borrower outstanding principal balance of the Revolving Loans, Foreign Currency Loans and Local Revolving Loans, until such Loans and Local Revolving Loans shall also pay have been paid in full; and
(d) then, to Cash Collateralize any amounts owing pursuant to outstanding L/C Obligations in the manner set forth in Section 28.02(c) (Remedies Upon Event of Default) until all such L/C Obligations have been fully Cash Collateralized in the manner set forth therein.
Appears in 1 contract
Sources: Credit Agreement (Jarden Corp)
Mandatory Prepayments. (ai) Upon If on any date the consummation Borrower or any of the Classmates IPOits Subsidiaries shall receive any Net Cash Proceeds from any Asset Sale Prepayment Event or Equity Issuance Prepayment Event, then an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 such Net Cash Proceeds shall be applied on the such date of the Classmates IPO toward the prepayment of the Loans and other amounts the reduction of the Commitments as set forth in Section 2.6(c3.3(b)(iii).
(b) If. If on any date the Borrower or any of its Subsidiaries shall receive any Net Cash Proceeds from any Debt Incurrence Prepayment Event, for any fiscal quarter then within 5 Business Days after receipt of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess such Net Cash FlowProceeds, the Borrower shall, on shall prepay the relevant Excess Cash Flow Application Date, apply 50Loans and/or reduce the amount of the Commitments in an amount equal to 100% of such Excess Net Cash Flow toward the prepayment of the Loans and other amounts Proceeds as set forth in Section 2.6(c3.3(b)(iii). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for ; provided, however, that with respect to the first three fiscal quarters and 90 days in $350,000,000 of Indebtedness issued or incurred by the case Borrower or any of its Subsidiaries after the fourth quarter of any fiscal year end. Notwithstanding Closing Date (the foregoing and without duplication under the definition of Excess Cash Flow“Special Debt Incurrence Prepayment Event”), the amount of Loans Borrower shall only be required to be repaid pursuant prepay the Loans and/or reduce the Commitments in an amount equal to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount 43% of optional prepayments of Loans made pursuant to such Net Cash Proceeds as set forth in Section 2.5 during such fiscal quarter3.3(b)(iii).
(cii) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to this Section 2.6 3.3(b) shall be applied, first, to the prepayment of the Loans in accordance with Section 2.12(b3.7 and, second, to reduce permanently the Commitments. The application of any prepayment pursuant to this Section 3.3(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed made, first, to the prepaymentBase Rate Loans and, on a pro rata basissecond, of the Loans held by Lenders that have elected to accept such Declined AmountsEurodollar Loans. Each prepayment of the Loans under this Section 2.6 3.3(b) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided.
(iii) Notwithstanding anything to the contrary in Section 3.3(b)(iii) or in Section 3.7, that if a Eurodollar Loan is prepaid on with respect to the amount of Net Cash Proceeds received in connection with any day other than Special Debt Incurrence Prepayment Event (the last day “Prepayment Amount”), the Borrower will, in lieu of applying such amount to the prepayment of the Interest Period Loans and the reduction of Commitments as provided in clause (ii) above, on the date specified in Section 3.3(b)(i) for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Lender a Prepayment Option Notice, which shall be in the form of Exhibit 3.3(b)(iii), and shall include an offer by the Borrower to prepay and/or reduce on the date (each a “Mandatory Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Loans and/or relevant Commitments of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable theretoto such Lender’s Loans and Commitments. On the Mandatory Prepayment Date, the Borrower shall also pay any amounts owing to the relevant Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Loans and/or to reduce that portion of the outstanding relevant Commitments in respect of which such Lenders have accepted prepayment as described above and the Borrower shall be entitled to retain the remaining portion of the Prepayment Amount not accepted by the relevant Lenders.
(iv) All prepayments pursuant to this Section 23.3(b) shall be subject to Section 3.14.
Appears in 1 contract
Sources: Delayed Draw Term Loan Agreement (Public Service Co of New Mexico)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) In the greater of (x) 50% event of the net cash proceeds received by termination of all the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowCommitments, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% date of such Excess Cash Flow toward termination, repay or prepay all outstanding Loans.
(ii) In the prepayment event of any partial reduction of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made Commitments pursuant to Section 2.5 during such fiscal quarter.
2.07 or Section 2.09(c), then (cx) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, at or prior to the prepayment effective date of such reduction, the Administrative Agent shall notify the Borrower and the Lenders of the Loans in accordance with Section 2.12(bTotal Revolving Exposure after giving effect thereto and (y) (unless otherwise agreed if the Total Revolving Exposure would exceed the aggregate amount of Commitments after giving effect to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectivelyreduction, then the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepaymentBorrower shall, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on reduction, repay or prepay Loans in an aggregate amount sufficient to eliminate such excess.
(iii) If at any time the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than Total Revolving Exposure exceeds the last day of the Interest Period applicable theretoCommitments at such time, the Borrower shall, without notice or demand, immediately repay or prepay Loans in an aggregate amount sufficient to eliminate such excess.
(iv) On (i) the date of any Asset Sale in respect of a Collateral Vessel or Sale and Leaseback Transaction in respect of a Collateral Vessel (or Asset Sale in respect of the Equity Interests in the owner of a Collateral Vessel) (the transactions referred to in this clause (i), each a “Collateral Vessel Disposition”) and (ii) the earlier of (A) the date which is one hundred and eighty (180) days following the Total Loss Date in respect of a Collateral Vessel (or, if such date is not a Business Day, on the following Business Day) and (B) the date (or, if such date is not a Business Day, on the following Business Day) of receipt by the Borrower, any Subsidiary Guarantor or the Administrative Agent of the insurance proceeds relating to such Total Loss (provided that if any Collateral Vessel which is the subject of a Requisition is redelivered to the full control of the Subsidiary Guarantor prior to such date, no prepayment shall also pay any amounts owing pursuant be required), the Borrower shall, subject to Section 22.20, permanently reduce the Commitments (and, if the Total Revolving Exposure exceeds the Commitments at such time, prepay a corresponding amount of Loans in an amount sufficient to eliminate such excess) in an amount (such amount, the “Collateral Disposition Reduction Amount”) equal to the aggregate outstanding principal amount of Loans and undrawn Commitments, multiplied by a fraction, the numerator of which is the Vessel Appraisal Value of the affected Collateral Vessel subject to such sale, total loss or other disposition and the denominator of which is the aggregate of the Vessel Appraisal Values of all Collateral Vessels (including such affected Collateral Vessel, but not including any Additional Vessel then included as a Collateral Vessel).
Appears in 1 contract
Sources: Revolving Credit Agreement (International Seaways, Inc.)
Mandatory Prepayments. (a) Upon Not later than the consummation tenth day following the receipt of Net Cash Proceeds in respect of any Disposition, the Classmates IPO, Borrower shall apply an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds Net Cash Proceeds received by with respect thereto to prepay outstanding Loans in accordance with Section 2.12(d); provided that, if the Borrower shall intend to reinvest such proceeds in connection with productive assets of a kind then used or usable in the Classmates IPO business of the Borrower and (y) $30,000,000 its Restricted Subsidiaries, or in any investment or acquisition not prohibited hereby, in each case within 365 days of the receipt of such proceeds, then the Borrower shall not be required to prepay outstanding Loans except to the extent not so used at the end of such 365-day period or committed to be so used at the end of and so used within 180 days after the end of such 365-day period, at which time any such proceeds not so used shall be applied on the date of the Classmates IPO toward the prepayment of the to prepay outstanding Loans and other amounts as set forth in accordance with Section 2.6(c2.12(d).
(b) IfNo later than 10 Business Days after the date on which audited financial statements are required to be delivered under Section 5.01(a) with respect to any fiscal year of the Borrower, commencing with the fiscal year ending December 31, 2018, the Borrower shall prepay outstanding Loans in accordance with Section 2.12(d) in an aggregate principal amount equal to (x) 75% of Excess Cash Flow for the fiscal year then ended minus (y) voluntary prepayments of Loans under Section 2.11 made with Internally Generated Cash after the end of such fiscal year but prior to the date such mandatory prepayment is due; provided that such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness; provided, further, that the Excess Cash Flow percentage for any fiscal quarter of Borrower beginning year with the fiscal quarter ending March 31, 2009, there respect to which Excess Cash Flow is measured shall be Excess reduced to (A) 50% if the Senior Secured Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 0.80:1.00 but greater than 0.60:1.00, (B) 25% if the Senior Secured Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 0.60:1.00 but greater than 0.40:1.00 and (C) 0% if the Senior Secured Net Leverage Ratio as of the last day of such fiscal year is less than or equal to 0.40:1.00.
(c) In the event that the Borrower or any Restricted Subsidiary shall receive Net Cash FlowProceeds from the issuance or incurrence of Indebtedness for money borrowed (other than Indebtedness permitted under Section 6.01 (other than Refinancing Loans)), the Borrower shall, on substantially simultaneously with (and in any event not later than the relevant Excess first Business Day next following) the receipt of such Net Cash Flow Application DateProceeds by the Borrower or such Restricted Subsidiary, apply 50an amount equal to 100% of such Excess Net Cash Flow toward Proceeds to prepay outstanding Loans in accordance with Section 2.12(d).
(d) Mandatory prepayments of outstanding Loans under this Agreement shall be allocated pro rata between the prepayment Loans, the Incremental Loans and the Refinancing Loans (unless Incremental Loans or Refinancing Loans agreed to receive less than their pro rata share) and, if any Incremental Equivalent Debt so requires, pro rata as to such Incremental Equivalent Debt, and applied first, to the remaining scheduled installments of principal due in respect of the Loans, Incremental Loans and the Refinancing Loans under Sections 2.10(a), (b) and (c) in direct order of maturity against, respectively (excluding the final payments on the Maturity Date of the Loans (or the maturity date in respect of such Incremental Loans or Refinancing Loans) under Sections 2.10(a), (b) and other amounts as set (c) respectively and second, to the final payment on the Maturity Date of the Loans (or the final payment on the maturity date of such Incremental Loans or Refinancing Loans).
(e) The Borrower shall 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 of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable (except in respect of prepayments required under Section 2.6(c2.12(c)), at least three (3) Business Days prior written notice of such prepayment. Each such 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 made on a date prepaid. All prepayments of Borrowings under this Section 2.12 shall be subject to Section 2.16 (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days and, in the case of a Repricing Transaction, Section 2.12(g)), but shall otherwise be without premium or penalty, and shall be accompanied by accrued and unpaid interest on the fourth quarter principal amount to be prepaid to but excluding the date of payment. Each Lender may reject all or a portion of its Pro Rata Share of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowmandatory prepayment (such declined amounts, the amount “Declined Proceeds”) of Loans required to be repaid made pursuant to this clause clauses (a) and (b) for any fiscal quarter shall be reduced on of this Section 2.12 by providing written notice (each, a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c“Rejection Notice”) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of Administrative Agent and the Loans in accordance with Section 2.12(bBorrower no later than 5:00 p.m., New York time, two (2) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to Business Days after the date of such prepayment on Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretomandatory repayment 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 Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans. Subject to the terms of the ABL Credit Agreement, any Declined Proceeds remaining shall be retained by the Borrower shall also pay (or the applicable Restricted Subsidiary) and may be applied by the Borrower or such Restricted Subsidiary in any amounts owing manner not prohibited by this Agreement.
(f) Notwithstanding any other provisions of this Section 2.12, (A) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 22.12(a) (a “Foreign Disposition”), or Excess Cash Flow attributable to any Foreign Subsidiary are prohibited or delayed by applicable local law from being repatriated to the United States, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 2.12 so long, but only so long, as the applicable local law will not permit repatriation to the United States (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 Excess Cash Flow is permitted under the applicable local law, an amount equal to such Net Cash Proceeds or Excess Cash Flow will be promptly applied (net of any additional Taxes that would be payable, as reasonably estimated by Borrower in good faith, or would be reserved if such portion of such Net Cash Proceeds or Excess Cash Flow were repatriated to fund such repayment) to the repayment of the Loans pursuant to this Section 2.12 to the extent provided herein and (B) 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 or Excess Cash Flow attributable to any Foreign Subsidiary would have a material adverse Tax consequence (taking into account any foreign Tax credit or benefit actually realized in connection with such repatriation), an amount equal to the portion of the Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay Loans at the times provided in this Section 2.12, and to the extent the repatriation of such Net Cash Proceeds or Excess Cash Flow can later be made without having a material adverse tax consequence, an amount equal to such portion of such Net Cash Proceeds or Excess Cash Flow will then be promptly applied (net of any additional Taxes that would be payable, as reasonably estimated by Borrower in good faith, or would be reserved if such portion of such Net Cash Proceeds or Excess Cash Flow were repatriated to fund such repayment) to the repayment of the Loans pursuant to this Section 2.12 to the extent provided herein.
Appears in 1 contract
Sources: Credit Agreement (Office Depot Inc)
Mandatory Prepayments. Subject to the Intercreditor Agreement, in addition to the mandatory prepayments required pursuant to Section 2.07 of the Credit Agreement:
(a) Upon Beginning with the consummation fiscal year ending December 31, 2014, within five Business Days after the delivery of each Compliance Certificate pursuant to Section 6.02(b) of the Classmates IPOCredit Agreement that relates to financial statements delivered pursuant to Section 6.01(a) of the Credit Agreement, the Borrower shall prepay an aggregate principal amount of Incremental Term Loans equal to the lesser of:
(i) the Applicable ECF Percentage of Excess Cash Flow for the fiscal year covered by such financial statements (the “ECF Prepayment Amount”), minus the aggregate amount of voluntary prepayments of Incremental Term Loans made during such fiscal year (without duplication of any voluntary prepayments of Term Loans deducted from the Excess Cash Flow payment for the prior fiscal year) and since January 1 of the current fiscal year pursuant to Section 2.05(a) of the Credit Agreement; and
(ii) if the lenders under any Other Term Facility require any mandatory prepayment in connection with excess cash flow, an amount equal to: to (iA) the greater ECF Prepayment Amount times (B) (1) the aggregate outstanding principal amount of such Incremental Term Loans governed hereby divided by (x2) 50% the sum of the net aggregate outstanding principal amount of the Incremental Term Loans governed hereby, such Other Term Facility and any other Other Term Facility which requires a mandatory prepayment of excess cash proceeds received by flow, and the Borrower remaining amount of the ECF Prepayment Amount shall be used to repay the Other Term Facilities which require mandatory prepayment in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)excess cash flow.
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Sources: Lender Joinder Agreement (Marina District Finance Company, Inc.)
Mandatory Prepayments. (a) Upon If any Indebtedness that is senior and is secured by the consummation of same assets securing the Classmates IPOobligations under this Agreement shall be issued or incurred after the Closing Date by any Loan Party (excluding any Indebtedness incurred in accordance with Section 6.2(a) through (m)), an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied applied, on the date of such issuance or incurrence or, if later, the Classmates IPO date on which such payment may be applied to the Loans in accordance with the terms of the Exit Facility Agreement, in either case, toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.5(d).
(b) If on any date any Loan party shall receive Net Cash Proceeds from any Asset Sale then such Net Cash Proceeds shall be applied no later than three (3) Business Days following such date or, if later, the date on which such payment may be applied to the Loans in accordance with the terms of the Exit Facility Agreement, in either case, toward the prepayment of the Loans as set forth in Section 2.5(d).
(c) If, for any fiscal quarter year of Borrower beginning the Borrower, commencing with the fiscal quarter year ending March December 31, 20092004, there shall be Excess Cash FlowFlow in excess of $5,000,000, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 5075% of such Excess Cash Flow in excess of $7,500,000 toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.5(d). Each such prepayment shall be made on a date (an “"Excess Cash Flow Application Date”") no later than 45 five days after each fiscal quarter end the latest to occur of (i) the date on which the financial statements of the Borrower referred to in Section 5.1(a), for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowperiod with respect to which such prepayment is made, the amount of Loans are required to be repaid pursuant delivered to this clause the Lenders, (bii) for any fiscal quarter shall the date such financial statements are actually delivered and (iii) the date on which such payment may be reduced on a dollar for dollar basis by applied to the amount Loans in accordance with the terms of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterthe Exit Facility Agreement.
(cd) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 2.5 shall be applied, applied to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed 2.11(b). The application of any prepayment pursuant to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount this Section 2.5 shall be distributed made, first, to the prepaymentABR Loans and, on a pro rata basissecond, of the Loans held by Lenders that have elected to accept such Declined AmountsEurodollar Loans. Each prepayment of the Loans under this Section 2.6 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Sources: Senior Term Loan and Guarantee Agreement (Gentek Inc)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Lead Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending September 30, 2016, the Lead Borrower shall prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) 50% of Excess Cash Flow of the Lead Borrower and its Restricted Subsidiaries for the Fiscal Year then ended, minus (B) at the option of the Lead Borrower, the aggregate principal amount of (x) 50% any Initial Term Loans, Additional Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date, and (y) the amount of any reduction in the net cash proceeds received by outstanding amount of any Initial Term Loans or Additional Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction), in each case under this clause (y) prior to such date and based upon the Borrower actual amount of Cash paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Lead Borrower or its Restricted Subsidiaries); provided that (1) such percentage of Excess Cash Flow shall be reduced to (I) 25% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 2.00 to 1.00, but greater than 1.50 to 1.00 and (yII) $30,000,000 0% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of the relevant Fiscal Year (but without giving effect to the payment required hereby) is less than or equal to 1.50 to 1.00 and (2) no prepayment under this Section 2.11(b)(i) shall be applied on required to the extent that the amount thereof would not exceed $50,000,000.
(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, in each case, in excess of $50,000,000 in any Fiscal Year (provided, however, that the aggregate principal amount of excluded Prepayment Asset Sales shall not exceed $175,000,000 in any Fiscal Year), the Lead Borrower shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) below; provided that if, prior to the date any such prepayment is required to be made, the Lead Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Classmates IPO toward Lead Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Lead Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within 15 months following receipt thereof or (B) the Lead Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 15-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 15-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Lead Borrower shall promptly prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Lead Borrower or any of its Restricted Subsidiaries is required to offer to repay or repurchase any other Indebtedness permitted hereunder to be secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the Subject Proceeds (such Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable Indebtedness”), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Initial Term Loans and other amounts as set forth Additional Term Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that 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 Initial Term Loans and Additional Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Initial Term Loans and Additional Term Loans that would have otherwise been required pursuant to this Section 2.6(c)2.11(b)(ii) shall be reduced accordingly; provided, further, that 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 such rejection) be applied to prepay the Initial Term Loans and Additional Term Loans in accordance with the terms hereof.
(biii) IfIn the event that the Lead Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Lead Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for any fiscal quarter except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of Borrower beginning the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrequirements of Section 9.02(c)), the Lead Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Lead Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and Additional Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Lead Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary, apply 50% the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Lead Borrower of any such amount would be prohibited under any Requirement of Law or conflict with the fiduciary duties of such Excess Cash Flow toward 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 (the prepayment Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation); it being understood that once the repatriation of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, 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 Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)) and (B) if the Lead Borrower determines in good faith that the repatriation to the Lead Borrower of any amounts required to mandatorily prepay the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in material and adverse tax consequences, 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 Lead Borrower, the amount the Lead Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the Lead Borrower the Restricted Amount without incurring such material and adverse tax liability; provided that to the extent that the repatriation of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be repaid made by the Lead Borrower pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied2.11(b), to the prepayment decline all (but not a portion) of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any its Applicable Percentage of such prepayment (collectivelysuch declined amounts, solely to the extent not applied to any other Indebtedness of the Lead Borrower or its subsidiaries as a mandatory prepayment of such Indebtedness, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Lead Borrower; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c). If any Lender fails to deliver a notice to 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 Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans and Additional Term Loans pursuant to this Section 2.11(b) shall be distributed applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that (x) any prepayment of Initial Term Loans or Additional Term Loans constituting Refinancing Indebtedness incurred to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c) shall be applied solely to each applicable Class of refinanced or replaced Term Loans and (y) at the election of the Lead Borrower, notwithstanding the foregoing, each prepayment of Initial Term Loans and Additional Term Loans with the proceeds of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds pursuant to Section 2.11(b)(ii) may be applied first, to prepayments of each Class of Term Loans other than Euro Term Loans made available pursuant to the prepaymentEuro Term Loan Facility on the Closing Date and second, to prepayments of Euro Term Loans made available pursuant to the Euro Term Loan Facility on the Closing Date), (B) with respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be applied against the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as directed by the Lead Borrower (or, in the absence of direction from the Lead Borrower, to the remaining scheduled amortization payments in respect of the Initial Term Loans and Additional Term Loans in direct order of maturity), and (C) each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentages. The amount of such mandatory prepayments shall be applied on a pro rata basis, basis to the then outstanding Initial Term Loans and Additional Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or Eurocurrency Rate Loans; provided that the amount thereof shall be applied first to ABR Loans held to the full extent thereof before application to the Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by Lenders that have elected the Lead Borrower pursuant to accept such Declined AmountsSection 2.16. Each Any prepayment of Initial Term Loans made on or prior to the Loans under date that is six months after the Closing Date pursuant to Section 2.6 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied by accrued interest the fee set forth in Section 2.12(f).
(vii) In the event that the Aggregate Dollar Revolving Credit Exposure exceeds the Total Dollar Revolving Credit Commitment then in effect, the Lead Borrower shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Dollar Revolving Loans and/or reduce the Dollar LC Exposure in an aggregate amount sufficient to reduce such Aggregate Dollar Revolving Credit Exposure as of the date of such payment to an amount not to exceed the Total Dollar Revolving Credit Commitment then in effect by taking any of the following actions as it shall determine at its sole discretion: (A) prepayment on of Dollar Revolving Loans or (B) with respect to the excess Dollar LC Exposure, deposit of Cash in the LC Collateral Account or “backstopping” or replacement of the relevant Dollar Letters of Credit, in each case, in an amount equal to 100% of such excess Dollar LC Exposure (minus the amount prepaid; provided, then on deposit in the LC Collateral Account). In the event that if a Eurodollar Loan is prepaid on any day other than the last day of Aggregate Multicurrency Revolving Credit Exposure exceeds the Interest Period applicable theretoTotal Multicurrency Revolving Credit Commitment then in effect, the Lead Borrower shall also pay any amounts owing pursuant to Section 2.shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Multicurrency Revolving Loans and/or reduce the Multicurren
Appears in 1 contract
Mandatory Prepayments. (a) Upon If, during the consummation Revolving Credit Commitment Period, the aggregate outstanding amount of the Classmates IPOAvailable Revolving Credit Commitments is less than zero (including, without limitation, any such occurrence resulting from the reductions in the Revolving Credit Commitments pursuant to subsection 5.2 or this subsection 5.13), the Borrower shall pay or prepay the Revolving Credit Loans or cause SS/L to prepay the Export Loan, without premium or penalty, on such date in an aggregate amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection to such excess, together with the Classmates IPO and (y) $30,000,000 shall be applied on interest thereon accrued to the date of such payment or prepayment and any amounts payable pursuant to subsection 5.10 or, in the Classmates IPO toward the prepayment case of the Loans and other amounts as set forth in Export Loan, payments for the account of San Paolo required pursuant to Section 2.6(c)3(b) of the Export Loan Agreement.
(b) If, The net cash proceeds of any issuance of indebtedness for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of borrowed money other than (i) the Loans and the Export Loans and (ii) of the type referred to in subsections 9.2(d) and 9.2(h) or cash pay, coupon bearing preferred stock after the Closing Date issued by the Borrower or any of its Restricted Subsidiaries to Persons other amounts as set forth in Section 2.6(c). Each such prepayment than to Affiliates of the Borrower shall be made used to prepay the Term Loans and reduce the Revolving Credit Commitments in accordance with this subsection 5.13; provided that no prepayments shall be required under this subsection 5.13(b) if the pro forma Funded Debt to Consolidated EBITDA ratio (for the four consecutive fiscal quarters ending on a date the last day of the period covered by the financial statements most recently delivered pursuant to subsections 8.1(a) or (an “Excess Cash Flow Application Date”b)) of the Borrower and its consolidated Subsidiaries is less than 3.00 to 1.00 after giving effect to such issuance of indebtedness or 43 38 preferred stock.
(c) The net after-tax cash proceeds of the sale or other disposition of any property or assets of the Borrower or any of its Restricted Subsidiaries required to prepay the Term Loans and reduce the Revolving Credit Commitments pursuant to subsection 9.6(h) shall be used to prepay the Term Loans and reduce the Revolving Credit Commitments in accordance with this subsection 5.13, in each case no later than 45 days 365 Business Days after each fiscal quarter end for the first three fiscal quarters and 90 days date of receipt thereof, unless such net after-tax cash proceeds have been reinvested in the case business of the fourth quarter of any fiscal year end. Notwithstanding the foregoing Borrower and without duplication under the definition its Restricted Subsidiaries within such 365 Business Day period.
(d) 50% of Excess Cash Flow, calculated annually at the amount end of Loans required to be repaid pursuant to this clause (b) for any each fiscal quarter year commencing on or after January 1, 1999 shall be reduced on a dollar for dollar basis by used to prepay the amount of optional prepayments of Term Loans made pursuant to Section 2.5 during and reduce the Revolving Credit Commitments in accordance with this subsection 5.13 within 90 days after the end or each such fiscal quarteryear; provided that such prepayment shall not be required under this subsection 5.13(d) if the pro forma Funded Debt to Consolidated EBITDA ratio (for the fiscal year then ended) of the Borrower and its consolidated Subsidiaries is less than 3.00 to 1.00, as of the last day of such fiscal year.
(ce) Amounts The net proceeds for any second consecutive launch failure of any satellite financed and scheduled to be applied in connection with prepayments made pursuant to Section 2.6 owned and operated by the Borrower and the insurance proceeds from any in-orbit failure of any satellite shall be applied, used to prepay the prepayment of Term Loans and the Loans Revolving Credit Commitments in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders)this subsection 5.13; (provided that any Lender may decline any such prepayment shall not be required under this subsection 5.13(e) if the pro forma Funded Debt to Consolidated EBITDA ratio (collectively, for the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, four consecutive fiscal quarters ending on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the period covered by the financial statements most recently delivered pursuant to subsections 8.1(a) or (b)) of the Borrower and its consolidated Subsidiaries is less than 3.00 to 1.00.
(f) Mandatory prepayments made pursuant to subsections 5.13(b), (c), (d) and (e) shall be applied first, to the Term Loans pro rata to the remaining installments on the Term Loans, and second, to the permanent reduction of the Revolving Credit Commitments (and to the repayment of the Revolving Credit Loans only as required in the next sentence). Payments made under this subsection 5.13 shall be applied first to Base Rate Loans, then to the Eurodollar Loans with an Interest Period applicable theretoending on such date and then to other Eurodollar Loans. If, after giving effect to the foregoing prepayments, the aggregate outstanding amount of all Extensions of Credit under the Revolving Credit Commitments still exceeds the aggregate amount of the Revolving Credit Commitments, then the Borrower shall also pay any cash collateralize the Letters of Credit, in an aggregate amount equal to such excess. All prepayments shall be accompanied by the amounts notified by each Bank to the Administrative Agent as due and owing pursuant to Section 2it under subsection 5.10 as a result of such prepayment.
Appears in 1 contract
Sources: Credit and Participation Agreement (Loral Space & Communications LTD)
Mandatory Prepayments. On the next occurring Monthly Payment Date, or at Borrower’s option, a Business Day prior to the next occurring Monthly Payment Date, following the date on which (a) Upon Lender actually receives any Net Proceeds, and (b) Lender has determined that such Net Proceeds shall be applied against the consummation Debt in accordance with a right of Lender pursuant to the Classmates IPOterms of this Agreement, Borrower shall prepay, or authorize Lender to apply Net Proceeds as a prepayment of, the Debt in an amount equal to: to one hundred percent (i100%) of such Net Proceeds. If such prepayment is not made on a Monthly Payment Date, Borrower shall also pay interest that would have accrued on the greater of (x) 50% principal balance of the net cash proceeds received by Note to, but not including, the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied date of such prepayment, calculated on a daily basis from the date of the Classmates IPO toward last Monthly Payment Date. Except during the prepayment continuance of the Loans and other amounts as set forth in Section 2.6(c).
(b) Ifan Event of Default, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there such Net Proceeds shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts applied by Lender as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days follows in the case following order of the fourth quarter of any fiscal year end. Notwithstanding the foregoing priority: First, to all amounts (other than principal and without duplication interest) then due and payable under the definition Loan Documents, including any costs and expenses of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied Lender in connection with prepayments made pursuant such prepayment); Second; accrued and unpaid interest at the Interest Rate; and Third, to principal. Any partial principal prepayment under this Section 2.6 2.4.4 shall be applied, applied to the prepayment last payments of principal due under the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Loan.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)[Reserved].
(b) IfAfter the Prepetition Debt has been paid in full and the commitments thereunder have been terminated, (i) not later than the third Business Day after the receipt of Net Cash Proceeds in respect of any Asset Sale, the Borrower shall apply 100% of such Net Cash Proceeds received (and not yet used to prepay Term Loans pursuant to this Section 2.13(b)) to prepay outstanding Term Loans in accordance with Section 2.13(g) and (ii) not later than the third Business Day after the receipt of any “net cash proceeds” in respect of the TSA Settlement (with “net cash proceeds”, for purposes of this clause (ii) to be defined as the aggregate cash proceeds received in respect of the TSA Settlement (including, for the avoidance of doubt, any fiscal quarter deferred amounts) and any cash payments received in respect of promissory notes or other non-cash consideration delivered in respect of the TSA Settlement, net of (without duplication) (A) the reasonable expenses (including legal fees and brokers’ and underwriters’ commissions paid to third parties which are not Subsidiaries or Affiliates of the Borrower) incurred in effecting the TSA Settlement, (B) any taxes reasonably attributable to the TSA Settlement, (C) any transition costs reasonably attributable to the transition of the TSA and duplicative costs in connection with such transition, as determined by the Borrower beginning in good faith and (D) any amounts payable to a Governmental Authority triggered as a result of the TSA Settlement), the Borrower shall apply 100% of such net cash proceeds received (and not yet used to prepay Term Loans pursuant to this Section 2.13(b)) to prepay outstanding Term Loans in accordance with the fiscal quarter ending March 31, 2009, there Section 2.13(g); provided that any Net Cash Proceeds received in respect of any Asset Sale of DIP Priority Collateral shall be Excess applied to prepay outstanding Term Loans in accordance with Section 2.13(g) on a dollar-for-dollar basis.
(c) [Reserved].
(d) After the Prepetition Debt has been paid in full and the commitments thereunder have been terminated, in the event that the Borrower or any of its subsidiaries shall receive Net Cash FlowProceeds from the issuance or incurrence of Indebtedness for money borrowed (other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, on substantially simultaneously with (and in any event not later than the relevant Excess third Business Day next following) the receipt of such Net Cash Flow Application DateProceeds by the Borrower or such subsidiary, apply 50an amount equal to 100% of such Excess Net Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required Proceeds to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the prepay outstanding Term Loans in accordance with Section 2.12(b2.13(g).
(e) [Reserved].
(unless otherwise agreed f) [Reserved].
(g) Mandatory prepayments of outstanding Term Loans under this Agreement shall be allocated pro rata among the Term Loans. The amount of any mandatory prepayment in respect of Term Loans of any Class shall be applied first to Term Loans of such Class that are ABR Loans to the full extent thereof before application to Term Loans of such Class that are Eurodollar Loans, in writing a manner that minimizes the amount of any payments required to be made by and among Lendersthe Borrower pursuant to Section 2.16.
(h) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13(b) or (d); , as applicable, (provided that any Lender may decline any i) a certificate signed by a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (collectivelyii) to the extent practicable, at least two days prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date, the “Declined Amount”), in which case Type of each Loan being prepaid and the Declined Amount principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.13 shall be distributed subject to the prepaymentSection 2.16, on a pro rata basisbut shall otherwise be without premium or penalty, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 and shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding the date of such prepayment on payment (which interest amounts shall reduce the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than of Net Cash Proceeds required to be applied to prepay the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Loans).
Appears in 1 contract
Mandatory Prepayments. (a) Upon If at any time the consummation sum of the Classmates IPOaggregate principal amount of all Revolving Credit Loans outstanding, an plus the aggregate principal amount equal to: (i) of all Swingline Loans plus the greater of (x) 50% of then current L/C Exposure shall exceed the net cash proceeds received by Total Revolving Credit Commitment, the Borrower in connection with will immediately prepay such Revolving Credit Loans to the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)extent necessary to eliminate such excess.
(b) IfOn or before January 15 in each year (commencing on January 15, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow2005), the Borrower shall, on shall prepay Loans in an amount equal to 75% of the relevant Excess Cash Flow Application Datefor the immediately preceding fiscal year; provided, apply however, that if the Total Leverage Ratio is less than 2.75:1.00, then such prepayment shall be in an amount equal to 50% of such Excess Cash Flow toward Flow. Concurrently with the prepayment making of each such prepayment, the Borrower shall deliver to the Administrative Agent, a certificate in such form as may be reasonably satisfactory to the Administrative Agent, signed by the chief financial officer of the Loans and other amounts as set Borrower, setting forth in Section 2.6(c). Each such prepayment shall be made on a date (an “reasonable detail the calculation of Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three immediately preceding fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarteryear.
(c) Amounts Within two (2) Business Days of the receipt of any Net Cash Proceeds by the Borrower or any Credit Party, the Borrower shall prepay Loans in an amount equal to 100% of the Net Cash Proceeds received by such Credit Party; provided, that no prepayment shall be required to the extent such Net Cash Proceeds are reinvested in assets to be used in the business of the Credit Parties within 365 days of the receipt of such Net Cash Proceeds.
(d) Within two (2) Business Days following the receipt by the Borrower or any other Credit Party (or by the Administrative Agent as loss payee) of any payment of proceeds of (i) any insurance relating to any Collateral (other than business interruption insurance) required to be maintained pursuant to this Credit Agreement or any other Fundamental Document on account of each separate loss, damage or injury in excess of $5,000,000 to any tangible real or personal property of the Borrower or any of its Subsidiaries other than Excluded Assets, or (ii) any condemnation proceeding affecting any Real Property Asset (provided, that, so long as no Default or Event of Default shall have occurred and then be continuing, such insurance or condemnation proceeds (or any portion thereof) may be expended or irrevocably committed by the Borrower or any of its Subsidiaries to repair or replace such property within 180 days of such loss, damage, injury or condemnation and the Borrower shall furnish to the Administrative Agent evidence satisfactory to the Administrative Agent of such expenditure or commitment and shall have certified to the Administrative Agent that such proceeds (or such proceeds together with other funds available to the Borrower) are sufficient to repair or replace such property), the Borrower shall prepay or, to the extent the Administrative Agent is loss payee under any insurance policy, irrevocably direct the Administrative Agent to apply as a prepayment of the Loans, an amount equal to 100% (or such lesser percentage which represents that portion of such proceeds not expended or committed pursuant to the immediately preceding parenthetical phrase) of such insurance or condemnation proceeds; provided, that if an Event of Default shall have occurred and be continuing, the Administrative Agent may require all proceeds of insurance required to be maintained pursuant to this Credit Agreement or any other Fundamental Document which would otherwise be payable to the Borrower to be paid to the Administrative Agent and applied in connection with prepayments made pursuant to Section 2.6 12.2(b).
(e) At any time the Total Leverage Ratio is equal to or greater than 2.75:1.00, within two (2) Business Days of the receipt of any Net Offering Proceeds from any sale of Capital Stock by the Borrower or any other Credit Party, the Borrower shall prepay Loans in an amount equal to 50% of such Net Offering Proceeds received.
(f) At any time the Borrower or any other Credit Party receives Net Offering Proceeds from the issuance of Subordinated Debt, then within two (2) Business Days of the receipt of such Net Offering Proceeds, the Borrower shall prepay the Loans in an amount equal to 100% of the Net Offering Proceeds.
(g) So long as no Default or Event of Default has occurred and is then continuing, any prepayments required under Section 2.11(b), (c), (d), (e) or (f) shall be applied, : (i) first to the prepayment outstanding principal balance (in inverse order of maturity) of the B Term Loans held by each Lender which does not elect to opt-out of such prepayment pursuant to Section 2.11(h) ratably in accordance with each Lender's proportionate share of the B Term Loans, (ii) second to the outstanding principal balance of the Swingline Loans, (iii) third to the outstanding principal balance of the Revolving Credit Loans ratably in accordance with each Lender's proportionate share of Revolving Credit Loans and (iv) fourth the remainder, if any, may, at the Borrower's request, be applied as a voluntary prepayment in accordance with Section 2.10 hereof and to the extent not so applied may be retained by the Borrower.
(h) The Administrative Agent shall make the prepayments of B Term Loans to each Term Loan B Lender to the extent required by 2.11(g)(i) unless not later than 11:30 a.m. Eastern time two (2) Business Days prior to the making of such prepayment, the Administrative Agent shall have received notice from a Term Loan B Lender electing not to receive such prepayment (each such Lender, an "Opt-Out Lender").
(i) If a Default or an Event of Default has occurred and is then continuing, at any time a prepayment is required under Section 2.11(b), (c), (d), (e) or (f), then such prepayment shall be applied to the outstanding principal balance (in inverse order of maturity in the case of B Term Loans) of B Term Loans and Revolving Credit Loans ratably to each Tranche of Loans in accordance with each Lender's proportionate share of each Tranche of such Loans.
(j) All prepayments of Loans under this Section 2.12(b2.11 shall, as regards Interest Rate Type, be applied first to Base Rate Loans, and subject to Section 2.11(l) (unless otherwise agreed hereof, then to Eurodollar Loans in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, order of the scheduled expiry of Interest Periods with respect thereto (i.e. those Eurodollar Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans with Interest Periods which end sooner would be paid before those with Interest Periods which end later).
(k) All prepayments under this Section 2.6 2.11 shall be accompanied by accrued but unpaid interest on the principal amount being prepaid to (but not including) the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid prepayment.
(l) If on any day other than on which Loans would otherwise be required to be prepaid pursuant to this Section 2.11, but for the operation of this Section 2.11(l) (each a "Prepayment Date"), the amount of such required prepayment exceeds the then outstanding aggregate principal amount of Base Rate Loans which are of the Tranche required to be prepaid, and no Default or Event of Default exists or is continuing, then on such Prepayment Date, (i) the Borrower shall deposit Dollars into the Cash Collateral Account in an amount equal to such excess, and only the outstanding Base Rate Loans which are of the Tranche required to be prepaid shall be required to be prepaid on such Prepayment Date and (ii) on the last day of each Interest Period after such Prepayment Date in effect with respect to a Eurodollar Loan which is of the Tranche required to be prepaid, the Administrative Agent is irrevocably authorized and directed to apply funds from the Cash Collateral Account (and liquidate investments held in the Cash Collateral Account as necessary) to prepay such Eurodollar Loans for which the Interest Period applicable thereto, is then ending to the Borrower shall also pay any amounts owing pursuant to Section 2extent funds are available in the Cash Collateral Account.
Appears in 1 contract
Sources: Credit, Security, Guaranty and Pledge Agreement (Genesis Healthcare Corp)
Mandatory Prepayments. (a) Upon If any Capital Stock shall be issued by the consummation of Borrower (other than Capital Stock issued in connection with the Classmates IPOexercise by present or former employees, officers or directors under a stock incentive plan, stock option plan or other equity based compensation plan or arrangement), an amount equal to: (i) the greater of (x) to 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.11(e); provided, that the foregoing percentage shall be reduced to zero in the event that the Consolidated Leverage Ratio at the end of the most recently completed fiscal quarter was not greater than 1.0 to 1.0.
(b) If any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 6.2), 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 2.11(e).
(bc) If on any date any Group Member shall receive Net Cash Proceeds (other than Excluded Net Cash Proceeds) from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, an amount equal to such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 2.11(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 toward the prepayment of the Term Loans as set forth in Section 2.11(e).
(d) If, for any fiscal quarter year of the Borrower beginning commencing with the fiscal quarter year ending March December 31, 20092006, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% the ECF Percentage of such Excess Cash Flow toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.11(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 five days after each fiscal quarter end the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 5.1(a), for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowwith respect to which such prepayment is made, the amount of Loans are required to be repaid pursuant delivered to this clause the Lenders and (bii) for the date such financial statements are actually delivered.
(e) The application of any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made prepayment pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 2.11 shall be appliedmade, first, to the prepayment of the ABR Loans in accordance with Section 2.12(b) (unless otherwise agreed and, second, to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined AmountsEurodollar Loans. Each prepayment of the Loans under Section 2.6 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, except in the case of a partial prepayment of a Revolving Loan that if a Eurodollar is an ABR Loan is prepaid on or any day other than the last day Swingline Loan. Mandatory prepayments of the Interest Period applicable thereto, the Borrower Term Loans shall also pay any amounts owing pursuant be made ratably to Section 2all Term Loans.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater earlier of (i) 90 days after the end of each Excess Cash Flow Period and (ii) the date on which the financial statements with respect to such fiscal year in which such Excess Cash Flow Period occurs are delivered pursuant to Section 5.01(a), the Borrower shall make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to (x) 50% of Excess Cash Flow for the net cash proceeds received Excess Cash Flow Period then ended if the Total Leverage Ratio at the end of such period is greater than or equal to 2.80:1.00, (y) 25% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Leverage Ratio at the end of such period is less than 2.80:1.00 but greater than or equal to 2.30:1.00 and (z) 0% of Excess Cash Flow for the Excess Cash Flow Period then ended if the Total Leverage Ratio at the end of such period is less than 2.30:1.00; provided that the aggregate principal amount of optional prepayments of Term Loans made pursuant to Section 2.10(a) (but excluding, for the avoidance of doubt, any Term Loans prepaid pursuant to a Discounted Prepayment Offer) and the aggregate principal amount of optional prepayments of ABL Loans made pursuant to the ABL Credit Agreement (but only to the extent accompanied by a permanent reduction in the commitments under the ABL Credit Agreement), in each case made during such Excess Cash Flow Period with Internally Generated Funds shall reduce on a dollar-for-dollar basis the amount of such mandatory prepayment otherwise required pursuant to this Section 2.10(b)(i) in respect of such Excess Cash Flow Period.
(ii) [Reserved].
(iii) [Reserved].
(iv) [Reserved].
(v) Not later than five Business Days following the receipt of any Net Cash Proceeds of any Asset Sale or Casualty Event by any Restricted Party (other than (x) Net Cash Proceeds of less than $5,000,000 in the aggregate in any fiscal year of the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds from the sale of any ABL Priority Collateral to the extent that such Net Cash Proceeds are applied in accordance with the terms of the respective ABL Facility), the Borrower shall apply 100% of such Net Cash Proceeds to make prepayments in accordance with Section 2.10(d); provided that: (x) so long as no Default shall then exist or would arise therefrom, such Net Cash Proceeds shall not be required to be so applied on such date to the extent that the Borrower shall have delivered an Officer’s Certificate to the Administrative Agent on or prior to such date stating that such Net Cash Proceeds are reasonably expected to be reinvested (or committed to be reinvested) in fixed or capital assets of the Borrower or any Subsidiary Guarantor within 12 months following the date of such Asset Sale or Casualty Event, as applicable (which Officer’s Certificate shall set forth the estimates of the Net Cash Proceeds to be so expended); provided that, if the property subject to such Asset Sale or Casualty Event constituted Collateral, then all property purchased or otherwise acquired with the Net Cash Proceeds thereof pursuant to this subsection shall be made subject to the First Priority (or Second Priority with respect to ABL Priority Collateral) perfected Lien (subject to Permitted Liens or, in the case of any Vessels, Permitted Collateral Vessel Liens) of the applicable Security Documents in favor of the Collateral Agent, for its benefit and for the benefit of the other Secured Parties in accordance with Section 5.10; and (y) if all or any portion of such Net Cash Proceeds is not so reinvested within such 12-month period (or if committed to be reinvested pursuant to a legally binding commitment within such 12-month period and not so reinvested within six months thereafter), such unused portion shall be applied on the date last day of such period as a mandatory prepayment as provided in this Section 2.10(b)(v); and provided, further, that (x) so long as no Default then exists or would result therefrom and (y) if the Net Cash Proceeds of any Asset Sales and/or Casualty Events exceed $10,000,000 in the aggregate, such Net Cash Proceeds shall be deposited in a Deposit Account (a “Reinvestment Proceeds Account”) of the Classmates IPO toward Borrower with the prepayment Administrative Agent (or another Deposit Bank reasonably satisfactory to the Administrative Agent) pursuant to a cash collateral arrangement in form and substance reasonably satisfactory to the Administrative Agent (and subject to a Deposit Account Control Agreement) whereby such Net Cash Proceeds shall be disbursed to the Borrower from time to time as needed to pay actual costs incurred by it or the applicable Subsidiary Guarantor in connection with the replacement or restoration of the Loans respective properties or assets (pursuant to such certification requirements as may be reasonably established by the Administrative Agent) (it being understood and other amounts as set forth agreed that at any time while an Event of Default has occurred and is continuing, the Required Lenders may direct the Administrative Agent (in Section 2.6(cwhich case the Administrative Agent shall, and is hereby authorized by the Borrower to, follow said directions) to apply any or all proceeds then on deposit in such Reinvestment Proceeds Account to the repayment of the Secured Obligations).
(bvi) If, for Not later than one Business Day following the receipt of any fiscal quarter Net Cash Proceeds of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowany Debt Issuance by any Restricted Party, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50shall make prepayments in accordance with Section 2.10(d) in an aggregate principal amount equal to 100% of such Excess Net Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterProceeds.
(cvii) Amounts Upon the incurrence or issuance by the Borrower of any Refinancing Notes or any Specified Refinancing Term Loans, the Borrower shall prepay an aggregate principal amount of the applicable Class or Classes of Term Loans that are to be applied in connection refinanced with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment proceeds of the such Refinancing Notes or Specified Refinancing Term Loans in accordance with Section 2.12(b2.10(d) (unless otherwise agreed in an aggregate principal amount equal to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, 100% of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2Net Cash Proceeds received therefrom.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Overseas Shipholding Group Inc)
Mandatory Prepayments. (a) Upon If at any time the consummation Revolving Outstandings exceed the Borrowing Base, the Company shall immediately prepay Revolving Loans in the amount of the Classmates IPOsuch excess (rounded upward, if necessary, to an amount equal to: (i) the greater integral multiple of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c100,000).
(b) If, for after giving effect to any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowprepayment pursuant to clause (a) above, the Borrower shallRevolving Outstandings exceed the Revolving Availability, on the relevant Excess Company will deliver to the Administrative Agent cash collateral in an amount equal to such excess (and the Administrative Agent shall continue to hold cash collateral, pursuant to documentation in form and substance reasonably satisfactory to the Issuing Lenders, in an amount equal to such excess, as changed from time to time, until such excess is eliminated). 33
(c) Within one Business Day following the receipt by the Company or any Subsidiary of any Net Cash Flow Application DateProceeds from any Asset Sale, apply 50% of such Excess Cash Flow toward the Company shall make a prepayment of the Term Loans and other in an amount (rounded down, if necessary, to an integral multiple of $100,000) equal to 100% of all such Net Cash Proceeds received since the Effective Time minus all amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of previously applied to prepay Term Loans required to be repaid pursuant to this clause (bc). (d) for any fiscal quarter shall be reduced on a dollar for dollar basis Within one Business Day following the receipt by the amount Company, the Parent or any Subsidiary of optional prepayments any Net Cash Proceeds from the issuance of Loans made pursuant to Section 2.5 during such fiscal quarter.
any Debt (cother than Debt permitted by Sections 10.7(a) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 through (f) and (h) through (k), the Company shall be applied, to the make a prepayment of the Term Loans in accordance with Section 2.12(ban amount (rounded down, if necessary, to an integral multiple of $100,000) equal to 100% of such Net Cash Proceeds received since the Effective Time minus all amounts previously applied to prepay Term Loans pursuant to this clause (unless otherwise agreed to in writing d). (e) Within one Business Day following the receipt by and among Lenders); (provided that any Lender may decline any such prepayment (collectivelythe Company, the “Declined Amount”)Parent or any Subsidiary of any Net Cash Proceeds from the issuance of any Debt under any Eximbank Financing Agreement, in which case the Declined Amount Company shall be distributed to the prepayment, on make a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Term Loans under Section 2.6 shall be accompanied (not to exceed $3,000,000 in the aggregate for all such prepayments) in an amount (rounded down, if necessary, to an integral multiple of $100,000) equal to 35% of such Net Cash Proceeds received since the Effective Time minus all amounts previously applied to prepay Term Loans pursuant to this clause (e). (f) Concurrently with the receipt by accrued interest the Company, the Parent or any Subsidiary of any Net Cash Proceeds from the issuance of any equity securities of the Company, Parent or any Subsidiary (other than securities issued to the date Parent, the Company or a Subsidiary and securities issued to officers, directors and employees of the Parent or any Subsidiary pursuant to any stock option, benefit or compensation plan), the Company shall make a prepayment of the Term Loans in an amount (rounded down, if necessary, to an integral multiple of $100,000) equal to 75% of such prepayment on Net Cash Proceeds received since the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any Effective Time minus all amounts owing previously applied to prepay Term Loans pursuant to Section 2this clause (f).
Appears in 1 contract
Sources: Credit Agreement (Middleby Corp)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2018, the Borrower shall prepay the outstanding principal amount of Initial Term Loans (including the 2020 Incremental Term Loans) and any Additional Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) 50% the aggregate principal amount of any Term Loans (including Additional Term Loans) and/or Revolving Loans (including Additional Revolving Loans or any revolving facility under this Agreement) prepaid pursuant to Section 2.11(a) prior to such date, (y) the aggregate principal amount of any loans under the Second Lien Facility (including any Additional Loans (as defined in the Second Lien Credit Agreement or any other document governing any Second Lien Facility)) prepaid pursuant to Section 2.11(a) of the net cash proceeds received Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) prior to such date (to the extent the relevant voluntary prepayments are permitted by the Borrower terms of this Agreement) and the aggregate principal amount of Incremental Equivalent Debt, Replacement Notes, “Incremental Equivalent Debt” (as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) and “Replacement Notes” (as defined in the Second Lien Credit Agreement or any equivalent term under any documentation governing any Second Lien Facility) prepaid, repurchased, redeemed or otherwise retired prior to such date and (z) (1) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) and/or (2) to the extent permitted by the terms of this Agreement, the amount of any reduction in the outstanding amount of any loans under the Second Lien Facility resulting from any assignment made in accordance with Section 9.05(g)(i) of the Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) (including in connection with any Dutch Auction (as defined in the Second Lien Credit Agreement)) made during such Fiscal Year or, at the option of the Borrower, prior to the date such payment is due and, in each case under this clause (z), based upon the actual amount of cash paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans pursuant to Section 2.11(b)(ii), to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments and assignments, to the extent that such prepayments were not financed with the proceeds of long term funded Indebtedness (yother than revolving Indebtedness (excluding any Revolving Loans))) $30,000,000 of the Borrower or its Restricted Subsidiaries; provided that no prepayment under this Section 2.11(b) shall be applied required unless and to the extent that the amount thereof exceeds $10,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary of the Borrower) is also required to prepay any Indebtedness that is secured on a pari passu basis with any Secured Obligation pursuant to the terms of, and to the extent required by, the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the date basis of the Classmates IPO toward aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(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, in each case, in excess of $30,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% of the 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 Initial Term Loans (including the 2020 Incremental Term Loans) and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other amounts than Cash or Cash Equivalents) of the Borrower or any of its 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 365 days following receipt thereof, or (y) the Borrower or any of its Subsidiaries has committed to so reinvest the Subject Proceeds during such 365-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 365-day 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 in Section 2.6(c).
above (bwithout regard to the immediately preceding proviso) Ifand (B) if, for at the time that any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall such prepayment would be Excess Cash Flowrequired hereunder, the Borrower shallor any of its Restricted Subsidiaries is required to repay or repurchase any Other Applicable Indebtedness (or offer to repurchase such Other Applicable Indebtedness), on then the relevant Excess Cash Flow Application Date, Person may apply 50% of such Excess Cash Flow toward the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for to the first three fiscal quarters and 90 days in the case repurchase or repayment of the fourth quarter Other Applicable Indebtedness (determined on the basis of any fiscal year end. Notwithstanding the foregoing aggregate outstanding principal amount of the Subject Loans and without duplication under the definition 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 Excess Cash Flow, the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of Loans the Subject Proceeds required to be repaid 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 clause (bSection 2.11(b)(ii) for any fiscal quarter shall be reduced on a dollar for dollar basis 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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the amount Borrower or any of optional prepayments its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Notes) incurred to refinance all or a portion of any Class of Term Loans made pursuant to Section 2.5 during such fiscal quarter.
6.01(p), (cB) Amounts Incremental Loans incurred to be applied in connection with prepayments made refinance all or a portion of any Class of Term Loans pursuant to Section 2.6 shall be applied2.22, (C) Replacement Term Loans incurred to refinance all or any portion of any Class of Term Loans in accordance with the prepayment requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to finance all or a portion of the Loans in accordance with the requirements of
Section 2.12(b6.01 (z), in each case to the extent required by the terms thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its 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 Sections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any 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 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 (it being agreed that, solely within 365 days following the end of the applicable Excess Cash Flow Period or 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) (unless it being understood that if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, 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 (iv))),
(B) the Borrower shall not be required to prepay any amount that would otherwise agreed be required to be paid pursuant to Sections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in writing each case, for so long as the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, 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 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 any amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.11(b)(i) or (ii) above would result in a material and adverse Tax liability (including any withholding Tax) (the amount attributable to such Foreign Subsidiary, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by and among Lenders)the Restricted Amount; (provided that any to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds or Excess Cash Flow, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above;
(v) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case the such Declined Amount Proceeds shall first be distributed applied to the prepayment, on a pro rata basis, any mandatory prepayment required under Section 2.11(b) of the Loans held by Lenders Second Lien Credit Agreement (or equivalent provision under any other document governing any Second Lien Facility) and any mandatory prepayment required with respect to any “Incremental Term Loans,” “Extended Term Loans,” “Replacement Term Loans” and/or “Replacement Notes” (in each case, as defined under the Second Lien Credit Agreement or any equivalent term under any Second Lien Facility); provided that have elected (A) in the event that any lender under the Second Lien Facility and any holder of such “Incremental Term Loans,” “Extended Term Loans,” “Replacement Term Loans” and/or “Replacement Notes” elects to accept decline receipt of such Declined Amounts. Each prepayment Proceeds in accordance with the terms of the Loans under Section 2.6 shall be accompanied by accrued interest to Second Lien Credit Agreement or the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day terms of the Interest Period applicable theretodocumentation governing such “Incremental Term Loans,” “Extended Term Loans,” “Replacement Term Loans” and/or “Replacement Notes,” as the case may be, the remaining amount thereof may be retained by the Borrower shall also pay and (B) for the avoidance of doubt, no Lender may reject any amounts owing pursuant to Section 2.pr
Appears in 1 contract
Sources: First Lien Credit Agreement (Dragoneer Growth Opportunities Corp.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPOIf any Capital Stock or Indebtedness shall be issued or incurred by any Consolidated Entity, an amount equal to: (i) the greater of (x) to 50% of the net cash proceeds received by Net Cash Proceeds, in the Borrower case of an issuance of Capital Stock (other than (i) to another Consolidated Entity, (ii) as permitted under Section 6.03, (iii) pursuant to employee and director compensation plans or (iv) otherwise for Net Cash Proceeds in connection with an aggregate amount up to $10,000,000), and 100% of the Classmates IPO and Net Cash Proceeds, in the case of an issuance or incurrence of Indebtedness (y) $30,000,000 other than as permitted under Section 6.01), shall be applied on the date of the Classmates IPO such issuance or incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.14(e); provided that no prepayment shall be required to be made pursuant to this subsection (a) if the Leverage Ratio on the last the day of the fiscal quarter most recently ended is 2.00 to 1.00 or less.
(b) If on any date any Consolidated Entity 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 date toward the prepayment of the Term Loans as set forth in Section 2.14(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 toward the prepayment of the Term Loans.
(c) If, for any fiscal quarter year of the Borrower beginning and its Domestic Subsidiaries commencing with the fiscal quarter year ending March 31December 24, 2009, 2005 there shall be Excess Domestic Cash Flow, the Borrower shall, on the relevant Excess Domestic Cash Flow Application Date, apply 50% the EDCF Percentage of such Excess Domestic Cash Flow toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.14(e). Each such prepayment shall be made on a date (an “Excess Domestic Cash Flow Application Date”) no later than 45 five days after each fiscal quarter end the earlier of (i) the date on which the financial statements of the Consolidated Entities referred to in Section 5.01(a) for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowwith respect to which such prepayment is made, the amount of Loans are required to be repaid pursuant delivered to this clause the Lenders and (bii) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during date such fiscal quarterfinancial statements are actually delivered.
(cd) If on any date any Consolidated Entity shall receive Net Cash Proceeds in connection with any Receivables Financing Program then such Net Cash Proceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 2.14(e).
(e) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 2.14 shall be applied, applied to the prepayment of the Term Loans in accordance with Section 2.12(b2.21(b) (unless otherwise agreed and shall be made, first, to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectivelyABR Loans and, the “Declined Amount”)second, to Eurocurrency Loans, in which each case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by together with accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than and the last day principal amount of the Interest Period applicable thereto, Term Loans and accrued interest thereon to be paid by the Borrower shall also pay any amounts owing pursuant to Section 2any such prepayment shall not exceed in the aggregate the applicable portion of Net Cash Proceeds or Excess Domestic Cash Flow, as the case may be, with respect to such prepayment.
Appears in 1 contract
Sources: Credit Agreement (Charles River Laboratories International Inc)
Mandatory Prepayments. (a) Upon Beginning with the consummation Interest Period ending June 30, 2024, on each March 31, June 30, September 30 and December 31 of each year (or if any such date is not a Business Day, such payment date shall be the Classmates IPOpreceding Business Day), an amount equal to: Borrower shall repay (iat par and without premium, including the Applicable Premium, or penalty) the greater of (x) 50Loans in quarterly installments each equal to 2.50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment aggregate principal amount of the Loans and other amounts advanced as set forth of the Closing Date (without giving effect to any reduction of the amount funded in respect of the OID Amount). For clarity, no mandatory prepayment pursuant to this Section 2.6(c2.7 or otherwise shall offset or reduce the amount payable under this Section 2.7(a).
(b) IfIf any Loan Party shall incur any Indebtedness (other than Permitted Indebtedness), for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, then on the relevant Excess date of receipt thereof, Borrower shall apply the Net Cash Flow Application Date, apply 50% Proceeds from such incurrence of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required Indebtedness to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepaymentrepay, on a pro rata basis, the Loans and other Obligations under this Agreement and the loans and other obligations under the Senior Credit Facility. Any amounts payable in respect to the Loans and Obligations hereunder shall first be applied to interest, fees and Applicable Premium, if any. The provisions of this Section 2.7(b) do not constitute a consent to the incurrence of any Indebtedness.
(c) If Borrower or any Subsidiary shall receive Net Cash Proceeds from any individual Asset Sale or series of related Asset Sales in excess of $10,000,000, or in excess of $20,000,000 from all Asset Sales made during any fiscal year, then within three Business Days following receipt thereof, Borrower shall apply such excess Net Cash Proceeds as follows:
(i) firstly, to repay loans under the Senior Credit Facility to the extent required by the terms thereof, and as in effect on the date hereof, in an amount equal to the amount of the Net Cash Proceeds received therefrom; and then
(ii) to prepay the maximum principal amount of the Loans together with accrued but unpaid interest and Applicable Premium, if any, to the date of such repayment that may be repaid with the remaining amount of the Net Cash Proceeds received therefrom, unless prior to such third Business Day Borrower elects, by written notice delivered to Agent, to make one or more Qualified Investments with any portion or all of such remaining Net Cash Proceeds and provided (1) such Qualified Investment is consummated within 180 days after receipt of such Net Cash Proceeds, (2) such Net Cash Proceeds are held in a deposit account subject to a Control Agreement at all times from the date of receipt through the date of such reinvestment, and (3) aggregate Qualified Investments made under this Section 2.7(c) do not exceed $100,000,000 in the aggregate. The provisions of this Section 2.7(c) do not constitute a consent to the making of any Asset Sale by or to any Loan Party.
(d) Upon the occurrence of a Change of Control, Borrower will make an offer (a “Change of Control Offer”) to each Lender to immediately prepay all, but not less than all, of outstanding principal amount of such ▇▇▇▇▇▇’s Loans, together with the accrued unpaid interest and Applicable Premium, if any, thereon to the date of repayment. Not later than the Business Day following any Change of Control, Borrower will provide notice Agent and each Lender describing the transaction or transactions that constitute the Change of Control and stating that (i) the Change of Control Offer is being made pursuant to this Section 2.7(d), (ii) all Loans of electing Lenders that have elected will be prepaid, together with the accrued unpaid interest and Applicable Premium, if any, thereon to accept the date of repayment, (iii) the date on which the Change of Control Offer expire, which shall be no earlier than 10 Business Days and no later than 15 Business Days from the date such Declined Amountsnotice provided. Lenders may exercise the right to require prepayment following any Change of Control by delivery of a written election to Borrower and Agent as provided in the Change of Control Offer. Borrower shall repay all Loans of Lenders electing to require such prepayment on the Business Day immediately following expiration of the Change of Control Offer. The provisions of this Section 2.7(d) do not constitute a consent to the occurrence of any Change of Control.
(e) Each prepayment of the Loans pursuant to this Section 2.7 shall be applied in accordance with Section 2.9 and shall be accompanied by a cash payment of the accrued interest on the principal amount be prepaid as of such date. Each prepayment of the Loans under Section 2.6 pursuant to Sections 2.7(b), 2.7(c) and 2.7(d) on or prior to the second anniversary of the Closing Date shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; providedApplicable Premium, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2as applicable.
Appears in 1 contract
Mandatory Prepayments. (a) Upon If any Indebtedness or Disqualified Capital Stock shall be incurred or issued by any Group Member after the consummation of the Classmates IPOAmendment No. 5 Effective Date (other than Excluded Indebtedness), an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such incurrence or issuance toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c4.2(f).
(b) IfIf on any date any Group Member shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there unless a Reinvestment Notice shall be Excess delivered in respect thereof, such Net Cash Flow, the Borrower shall, Proceeds shall be applied on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow date toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c4.2(f); 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 Loans as set forth in Section 4.2(f).
(c) The Borrower shall, on each Excess Cash Flow Application Date commencing with the Excess Cash Flow Application Date applicable to the fiscal year of the Borrower ending September 27, 2015, apply the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period toward the prepayment of the Loans as set forth in Section 4.2(f). Each Except as provided below, each such prepayment and commitment reduction shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 ten (10) days after each fiscal quarter end the date on which the financial statements referred to in Section 7.1(a) for the first three fiscal quarters and 90 days in the case year of the fourth quarter of any fiscal year endBorrower with respect to which such prepayment is made are required to be delivered to the Lenders. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowforegoing, the amount of Loans Borrower will not be required to be repaid prepay the Loans pursuant to this clause (bc) with respect to any Excess Cash Flow for the related Excess Cash Flow Payment Period attributable to a Foreign Subsidiary if the repatriation of such Excess Cash Flow from such Foreign Subsidiary at any time during the fiscal quarter year in which such Excess Cash Flow Application Date occurs would cause adverse consequences from fees, taxes or similar impositions of Governmental Authorities to the Borrower or would otherwise be payable as a result of the occurrence of any one-time repatriation holidays; provided that in the event the Borrower is required to make a payment of Excess Cash Flow attributable to a Foreign Subsidiary, such payment shall be reduced on made no later than ten (10) days after the Borrower becomes aware that such repatriation would not cause adverse consequences from fees, taxes or similar impositions of Governmental Authorities to the Borrower; provided further that in the event that the Borrower is not required to make a dollar payment of Excess Cash Flow attributable to a Foreign Subsidiary during the fiscal year in which such Excess Cash Flow Application Date occurs, no payment shall be due in any succeeding fiscal year.
(d) [RESERVED].
(e) [RESERVED].
(f) Except for dollar basis by the amount of optional prepayments of Loans made required pursuant to Section 2.5 during 4.2(d) (such fiscal quarter.
(c) Amounts prepayment solely to be applied to repay the Term Loans), amounts to be applied in connection with prepayments made pursuant to this Section 2.6 4.2 shall be applied, first, to the prepayment of the Term Loans in accordance with Section 2.12(b) (unless otherwise agreed 4.8 and, second, to in writing by and among Lenders); (provided that prepay the Revolving Loans without any Lender may decline any such prepayment (collectively, permanent reduction of the “Declined Amount”)Revolving Commitments, in which each case the Declined Amount shall be distributed to the prepayment, on a pro rata basis; provided that if the aggregate principal amount of Revolving Loans and Swingline 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 reasonably satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 4.2 shall be made, first, to Base Rate Loans held by Lenders that have elected and, second, to accept such Declined AmountsEurodollar Loans. Each prepayment of the Loans under this Section 2.6 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day .
(g) [RESERVED].
(h) Any prepayment of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing Term Loans made pursuant to Section 24.2(a) on or prior to the first anniversary of the Fourth Amendment Effective Date with the proceeds of Indebtedness incurred by the Borrower from a substantially concurrent borrowing of loans provided by one or more banks, funds or other financial institutions (other than any such borrowing pursuant to a refinancing of all the facilities or the Term Loans under this Agreement in connection with a Permitted Acquisition, Change of Control or other transaction not permitted by this Agreement (prior to giving effect to any amendment, waiver or other modification of this Agreement that is effected in connection with such transaction)) for which the interest rate payable thereon is, or upon satisfaction of specified conditions could reasonably be expected to be, less than the interest rate applicable to Term Loans that are Eurodollar Loans at the time of such prepayment shall be subject to the payment of a premium of 1.0% of the aggregate principal amount of such prepayment. For the avoidance of doubt, any prepayment or repayment of Term Loans funded directly or indirectly with the proceeds of Capital Stock issued by the Borrower or equity contributed to the Borrower and received after the Fourth Amendment Effective Date shall not require the payment of any premium contemplated by the preceding sentence.
Appears in 1 contract
Sources: Credit Agreement (Microsemi Corp)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Commencing with the first full fiscal year of the Parents ending after the Closing Date, within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, if the Excess Cash Flow of the Parents, the Borrower and the Restricted Subsidiaries is greater than the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO $10,000,000 and (y) $30,000,000 shall 5.00% of Consolidated EBITDA, cause to be applied on prepaid an aggregate principal amount of Term Loans (such aggregate amount, the date “Excess Cash Flow Prepayment Amount”) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the Classmates IPO toward the prepayment amount equal to Excess Cash Flow in excess of the Loans greater of (x) $10,000,000 and other amounts as set forth in Section 2.6(c).
(by) If5.00% of Consolidated EBITDA, if any, for any the fiscal quarter of Borrower beginning year covered by such financial statements (commencing with the first full fiscal quarter year ending March 31after the Closing Date), 2009, there shall be Excess Cash Flowminus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buybacks made by any Parent, the Borrower shall, on or any Restricted Subsidiary in an amount equal to the relevant Excess Cash Flow Application Date, apply 50% amount actually paid in respect thereof) of Term Loans during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow toward the prepayment payment, (2) all voluntary prepayments of the Loans ABL Facility or any other revolving credit facility during such fiscal year or after such fiscal year and prior to the making of such ECF payment to the extent the commitments under the ABL Facility or other revolving credit facility, as applicable, are permanently reduced by the amount of such payments, (3) without duplication of amounts as set forth deducted pursuant to clause (6) below, the amount of Capital Expenditures or acquisitions made in cash during such period, except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness of the Parents, the Borrower or the Restricted Subsidiaries (other than revolving loans), (4) without duplication of amounts deducted pursuant to clause (6) below, the amount of Investments and Permitted Acquisitions made during such period pursuant to Section 2.6(c7.02 (other than Section 7.02(a). Each , (d), (n) and (z)) except to the extent that such prepayment Investments and Permitted Acquisitions were financed with the proceeds of an incurrence or issuance of Indebtedness of the Parents, the Borrower or the Restricted Subsidiaries (other than revolving loans), (5) the amount of Restricted Payments paid in cash during such period pursuant to Section 7.06 (other than Section 7.06(a) (solely in respect of amounts paid to a Parent, the Borrower or a Restricted Subsidiary), (b), (k) and (r)) except to the extent that such Restricted Payments were financed with the proceeds of an incurrence or issuance of Indebtedness of the Parents, the Borrower or the Restricted Subsidiaries (other than revolving loans) and (6) without duplication of amounts deducted in prior periods, the aggregate consideration required to be paid in cash by any Parent, the Borrower or any Restricted Subsidiary pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period except to the extent intended to be financed with the proceeds of an incurrence or issuance of other Indebtedness of the Parents, the Borrower or the Restricted Subsidiaries (other than revolving loans); provided that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall, shall be made on a date (an “added to the calculation of Excess Cash Flow Application Dateat the end of such period of four consecutive fiscal quarters) (any transaction referred to in this clause (B), made following the fiscal year end but prior to the making of such prepayment under this clause (b)(i), an “After Year-End Transaction”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days ), except, in the case of each of the fourth quarter immediately preceding clauses (1) and (2), to the extent such prepayments are funded with the proceeds of Indebtedness (other than revolving loans) or any fiscal year end. Notwithstanding Cure Amounts; provided that (y) the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter ECF Percentage shall be reduced to 25% if the First Lien Senior Secured -67- #95982248v17 Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.75:1.00 and greater than or equal to 3.25:1.00 and (z) the ECF Percentage shall be reduced to 0% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.25:1.00; provided, further, (I) to the extent so elected by the Borrower, following the making of any After Year-End Transaction, (i) the First Lien Senior Secured Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Transaction as if payment was made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated First Lien Senior Secured Leverage Ratio and (ii) such After Year-End Transaction shall not be applied to the calculation of the First Lien Senior Secured Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow prepayment and (II) to the extent any reduction pursuant to clauses (1) or (2) above reduce the Excess Cash Flow Prepayment Amount below the Excess Cash Flow Prepayment Threshold, such excess amounts for such fiscal year shall, at the Borrower’s sole option, be carried over to any succeeding fiscal year and shall reduce any Excess Cash Flow Prepayment Amount on a dollar for dollar basis for such fiscal year. (ii) (A) Subject to Section 2.05(b)(ii)(B), if following the Closing Date (x) any Parent, the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party, or pursuant to clause (iii) of the proviso thereto), (e), (f), (g), (j), (k), (n), (o), (p), (q), (r) and (s)), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Parent, the Borrower or any Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of optional prepayments Term Loans equal to 100% (such percentage, the “Asset Percentage”) of Loans made all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be required pursuant to this Section 2.5 2.05(b)(ii)(A) (I) with respect to such portion of such 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 2.05(b)(ii)(B) or (II) until the aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein and not previously applied to such a prepayment exceeds $10,000,000 for any single Disposition or series of related Dispositions or $20,000,000 in the aggregate during such fiscal quarter.
year (c) Amounts and thereafter only amounts in excess of such thresholds shall be required to be applied in connection prepaid) and (2) if at the time that any such prepayment would be required, any Parent, the Borrower or any of the Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with prepayments made the Liens securing the Obligations pursuant to Section 2.6 shall the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be appliedoffered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) to the prepayment of the Term Loans in accordance with and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.12(b2.05(b)(ii)(A) (unless otherwise agreed to in writing by and among Lenders); shall be reduced accordingly (provided that any Lender may decline any (a) the portion of such prepayment (collectivelyNet Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the “Declined Amount”)remaining amount, in which case the Declined Amount if any, of such Net Cash Proceeds shall be distributed allocated to the prepayment, on a pro rata basis, of the Term Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.in -68- #95982248v17
Appears in 1 contract
Sources: Credit Agreement (Utz Brands, Inc.)
Mandatory Prepayments. (ai) Upon No later than the consummation fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2023, the Borrower shall prepay the outstanding principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower, its Restricted Subsidiaries and the Consolidated APCs for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) the aggregate principal amount of any Term Loans and/or Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date and (y) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (y), based upon the actual amount of cash paid in connection with the relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries); provided that no prepayment under this Section 2.11(b) shall be required unless and to the extent that the amount thereof exceeds $3,000,000.
(A) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale, the Borrower shall apply an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and any Incremental Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Net Proceeds in Capital Expenditures or long term capital assets useful to the business of the Borrower and/or any subsidiary and/or Affiliated Practice (as determined by the Borrower in connection good faith), then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Net Proceeds to the extent the Net Proceeds are so reinvested within 365 days following receipt thereof (or such longer period as the Lender Representative may approve in its sole discretion); it being understood that if the Net Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the Classmates IPO and (y) $30,000,000 shall be applied on the date amount of the Classmates IPO toward the prepayment of the Loans and other amounts Net Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided further that the aggregate amount that may be so reinvested from and after the Second Amendment Effective Date shall not exceed $10,000,000 in Section 2.6(c)any Fiscal Year.
(bB) IfNo later than the fifth Business Day following the receipt of Net Insurance/Condemnation Proceeds (any such Net Insurance/Condemnation Proceeds, for together with any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31Net Proceeds referenced in clause (ii)(A) above, 2009, there shall be Excess Cash Flow“Subject Proceeds”), the Borrower shall, on the relevant Excess Cash Flow Application Date, shall apply 50an amount equal to 100% of such Excess Cash Flow toward the prepayment of Net Insurance/Condemnation Proceeds received with respect thereto to prepay the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the outstanding principal amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Subject Loans in accordance with Section 2.12(bclause (vi) (unless otherwise agreed to in writing by and among Lenders)below; (provided that any Lender may decline if prior to the date any such prepayment (collectivelyis required to be made, the “Declined Amount”Borrower notifies the Administrative Agent of its intention to reinvest the Net Insurance/Condemnation Proceeds in the business of the Borrower and/or any subsidiary and/or Affiliated Practice (to the extent such Investment is permitted or not restricted under Section 6.06) (other than in Cash or Cash Equivalents), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, then so long as no Event of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretoDefault then exists, the Borrower shall also pay not be required to make a mandatory prepayment under this clause (ii) in respect of the Net Insurance/Condemnation Proceeds to the extent (x) the Net Insurance/Condemnation Proceeds are so reinvested within 365 days following receipt thereof, or (y) the Borrower or any amounts owing pursuant of its subsidiaries has committed to Section 2so reinvest the Net Insurance/Condemnation Proceeds during such 365-day period and the Net Insurance/Condemnation Proceeds are so reinvested within 180 days after the expiration of such 365-day period; it being understood that if the Net Insurance/Condemnation 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 Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso).
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Mandatory Prepayments. Within ten (a10) Upon Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the consummation related Compliance Certificate has been delivered pursuant to Section 6.02(a), commencing with the fiscal year ending December 31, 2021, the Company shall cause to be prepaid an aggregate principal amount of the Classmates IPO, an amount Term Loans equal to: to (i) the greater of (xA) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, if any, for the fiscal year covered by such financial statements, if the extent Excess Cash Flow for such period exceeds $5,000,000 and then, only to the extent of the amount in excess of $5,000,000, minus at the Company’s option, (B) the sum of (i) (x) all voluntary prepayments of Term Loans (or any Credit Agreement Refinancing Indebtedness in respect thereof) during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the Company’s option, following the last day of such fiscal year and on or prior to such required to be repaid pursuant to this clause prepayment date) and (by) for any fiscal quarter shall be reduced voluntary prepayments of other Indebtedness permitted hereunder that is secured on a dollar pari passu basis with the Secured Obligations (including, in the case of clauses (x) and (y), any debt buyback or prepayments at a discount to par under such facilities, with credit given for dollar basis the actual amount of the cash payment) and (ii) all voluntary prepayments of Revolving Credit Loans (or any Credit Agreement Refinancing Indebtedness in respect thereof) during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the Company’s option, following the last day of such fiscal year and on or prior to such required prepayment date) to the extent the Revolving Credit Commitments are permanently reduced by the amount of optional such payments or to the extent drawn to account for any additional OID (or, in each case, any Credit Agreement Refinancing Indebtedness in respect thereof), in the case of each of the immediately preceding clauses (i) and (ii), in each case, to the extent such prepayments are not funded with the proceeds of Indebtedness. Subject to Section 2.05(b)(ii)(B), and any Customary Intercreditor Agreement, if following the Closing Date (x) Company or any Restricted Subsidiary consummates any non-ordinary course sale, transfer or other disposition of property or assets permitted by Section 7.05(a)(ii) and clauses (7) though (28) of the definition of Asset Disposition, or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Company or such Restricted Subsidiary of Net Available Cash in excess of $5,000,000 (and then, only to the extent of the amount in excess of $5,000,000) in the case of each of, a single Asset Disposition or Casualty Event or series of related Asset Dispositions or Casualty Events, the Company shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), of an aggregate principal amount of Term Loans made equal to such Net Available Cash (the “Applicable Proceeds”) realized or received; provided that no such prepayment shall be required pursuant to this Section 2.5 during 2.05(b)(ii)(A) (I) with respect to such fiscal quarter.
portion of such Net Available Cash that the Company intends to reinvest in accordance with Section 2.05(b)(ii)(B), (cII) Amounts until the aggregate amount of Net Available Cash is reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein or (III) with respect to such portion of such Net Available Cash that is used to repay Other Applicable Indebtedness as permitted under Section 2.05(b)(ii)(C). With respect to any Applicable Proceeds realized or received with respect to any Asset Disposition (other than any Asset Disposition specifically excluded from the application of Section 2.05(b)(ii)(A)) or any Casualty Event, at the option of the Company, the Company may (x) reinvest (including capital expenditures) an amount equal to all or any portion of such Applicable Proceeds in (i) Additional Assets (including by means of an investment in Additional Assets by a Restricted Subsidiary) or (ii) in any one or more businesses (provided such business will be a Restricted Subsidiary) within twelve (12) months (or one hundred eighty (180) days after the twelve (12) month period following receipt of such Applicable Proceeds if a contractual commitment to reinvest is entered into within twelve (12) months) following receipt of such Applicable Proceeds or (y) such Applicable Proceeds shall be deemed to have been reinvested in assets used or useful in the business of the Company or any Restricted Subsidiary (including pursuant to a Permitted Acquisition, Investment or capital expenditure) pursuant to any such investment occurring in the 90 days preceding the date of receipt of such Applicable Proceeds; provided that if any Applicable Proceeds are not so reinvested by the deadline specified in clause (x) or (y) above, as applicable, or if any such Applicable Proceeds are no longer intended to be applied in connection with prepayments made pursuant or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to Section 2.6 such Applicable Proceeds shall be applied, in accordance with Section 2.05(b)(ii)(C), to the prepayment of the Term Loans as set forth in this Section 2.05. On each occasion that the Company must make a prepayment of the Term Loans pursuant to this Section 2.05(b)(ii), the Company shall, within ten (10) Business Days after the date of realization or receipt of such Applicable Proceeds (or, in the case of prepayments required pursuant to Section 2.05(b)(ii)(B), within ten (10) Business Days of the deadline specified in clause (x) or (y) thereof, as applicable, or of the date the Company reasonably determines that such Applicable Proceeds are no longer intended to be or cannot be so reinvested, as the case may be), make a prepayment, in accordance with Section 2.05(b)(v) below, of the principal amount of Term Loans in an amount equal to such Applicable Proceeds realized or received; provided, further, that with respect to any prepayment required by Section 2.05(b)(ii)(A), the Company may use a portion of such Applicable Proceeds to prepay or repurchase Indebtedness secured by the Collateral on a pari passu basis with the Liens securing the Secured Obligations subject to the priorities applicable to the Priority Payment Obligations (the “Other Applicable Indebtedness”) to the extent required pursuant to the terms of the documentation governing such Other Applicable Indebtedness, in which case, the amount of prepayment required to be made with respect to such Applicable Proceeds pursuant to this Section 2.05(b)(ii)(C) shall be deemed to be the amount equal to the product of (x) the amount of such Applicable Proceeds required to be repaid by (y) a fraction, the numerator of which is the outstanding principal amount of Term Loans required to be prepaid pursuant to this Section 2.05(b)(ii)(C) 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 (for the avoidance of doubt, amounts described in this clause (y) in the calculation of such fraction shall be deemed to refer to then outstanding principal amount of such Indebtedness subject to such prepayment requirement, prior to giving effect to any reduction in the amount thereof as the result of such prepayment) and to the extent that the holders of Other Applicable Indebtedness do not accept such prepayment or repurchase, the amount that would otherwise be used to prepay or repurchase such Other Applicable Indebtedness shall be applied to prepayment of the Term Loans in accordance with Section 2.12(b2.05(b)(v) below. If, following the Closing Date, Holdings or any Restricted Subsidiary incurs or issues any (unless otherwise agreed A) Refinancing Term Loans, (B) Refinancing Indebtedness with respect to in writing by and among Lenders); Indebtedness permitted pursuant to Section 7.03(b)(i) or (provided that any Lender may decline any such prepayment (collectivelyC) Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the “Declined Amount”Company shall cause to be prepaid an aggregate principal amount of Term Loans equal to 100.0% of all Net Available Cash received therefrom (x) in the case of (A) or (B), concurrently with the receipt of such net Available Cash or (y) in the case of (C) on or prior to the date which case is one (1) Business Day after the Declined Amount receipt of such Net Available Cash. Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be distributed to the prepayment, applied on a pro rata basisbasis to each Class of Term Loans and within each Class of Term Loans, as directed by the Company or, in the case of no direction, first, to the installments thereof pro rata in direct order of maturity for the next four scheduled payments pursuant to Section 2.07(a) following the applicable prepayment event and, second, to the remaining installments thereof pro rata; provided that any mandatory prepayment pursuant to Section 2.05 shall be applied on a pro rata basis to each Class of Initial Term Loans held by Lenders that have elected and, except to accept such Declined Amountsthe extent a lesser prepayment is required pursuant to the applicable Incremental Facility Amendment or Extension Offer with respect to any applicable Class of Incremental Term Loans or Extended Term Loans, any Incremental Term Loans and Extended Term Loans. Each such prepayment of the any Class of Term Loans under Section 2.6 shall be accompanied by accrued interest paid to the Lenders in accordance with their respective Applicable Percentages subject to clause (v) of this Section 2.05(b). The Company shall notify the Term Loan Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i), (ii), and (iii) of this Section 2.05(b) prior to 1:00 p.m. at least one (1) Business Day prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Term Loan Administrative Agent will promptly notify each Appropriate Lender of the contents of the Company’s prepayment notice and of such Appropriate Lender’s Applicable Percentage of the prepayment with respect to any Class of Term Loans. Each Appropriate Lender may reject all or a portion of its Applicable Percentage of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clauses (i) or (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Term Loan Administrative Agent and the Company no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Term Loan Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Term Loan 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 such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be retained by the Company (“Retained Declined Proceeds”). Notwithstanding any other provision of this Section 2.05(b), (i) to the extent that any or all of the Net Available Cash of any Asset Disposition by a Foreign Subsidiary otherwise giving rise to a prepayment pursuant to Section 2.05(b)(ii) (a “Restricted Disposition”), the Net Available Cash of any Casualty Event of a Foreign Subsidiary (a “Restricted Casualty Event”) or Excess Cash Flow attributable to Foreign Subsidiaries would be prohibited or delayed by applicable local law from being distributed or otherwise transferred to the Company, the realization or receipt of the portion of such Net Available Cash or Excess Cash Flow so affected will not be taken into account in measuring the Company’s obligation to repay Term Loans at the times provided in Section 2.05(b)(i), or the Company shall not be required to make a prepayment at the time provided in Section 2.05(b)(ii), as the case may be, for so long, but only so long, as the applicable local law will not permit such distribution or transfer (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions available under the applicable local law to permit such repatriation), and once distribution or transfer of any of such affected Net Available Cash or Excess Cash Flow is permitted under the applicable local law, the amount of such Net Available Cash or Excess Cash Flow permitted to be distributed or transferred (net of additional taxes or tax distributions payable or reserved against as a result thereof) will be promptly (and in any event not later than three (3) Business Days after such distribution or transfer is permitted) taken into account in measuring the Company’s obligation to repay the Term Loans pursuant to this Section 2.05(b) to the extent provided herein, and (ii) to the extent that the Company has determined in good faith that repatriation of any or all of the Net Available Cash of any Restricted Disposition or any Restricted Casualty Event or Excess Cash Flow, in each case attributable to Foreign Subsidiaries, would have (x) an adverse tax consequence that is not de minimis (including any withholding tax and taking into account any foreign tax credit or benefit received in connection with such repatriation) or (y) would be material constituent document restrictions (as a result of minority ownership by third parties) and other material agreements (so long as any prohibition is not created in contemplation of such prepayment), the amount of the Net Available Cash or Excess Cash Flow so affected shall not be taken into account in measuring the Company’s obligation to repay Term Loans pursuant to this Section 2.05(b). Notwithstanding the foregoing, (x) Holdings and its Foreign Subsidiaries will undertake to use commercially reasonable efforts for one year to overcome or eliminate any such restrictions (subject to the considerations above and as determined in the Company’s reasonable business judgment) to make the relevant prepayment and (y) any prepayments required after application of the above provision shall be net of any costs, expenses or Taxes (other than any Taxes already taken into account in the definition of Net Available Cash or Excess Cash Flow, as applicable) incurred (or Restricted Payments in respect of such Taxes paid) by the Company or any of its Affiliates and arising as a result of compliance with immediately preceding clause (x). If for any reason the aggregate Revolving Credit Exposures of all Lenders at any time exceeds the aggregate Revolving Credit Commitments then in effect (including, for the avoidance of doubt, as a result of currency fluctuations or the termination of such Revolving Credit Commitments on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable Maturity Date with respect thereto), the Borrower shall also pay any amounts owing promptly prepay or cause to be promptly prepaid Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 22.05(b)(vii) unless after the prepayment in full of the Revolving Credit Loans, the aggregate Revolving Credit Exposures exceed the aggregate Revolving Credit Commitments.
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Mandatory Prepayments. (ai) Upon Within ten (10) Business Days after financial statements have been delivered (or were required to be delivered) pursuant to Section 6.01(a) and the consummation related Compliance Certificate has been delivered pursuant to Section 6.02(a) (commencing with the financial statements to be delivered with respect to the fiscal year ending March 31, 2024), the Borrowers shall offer to prepay (or cause an offer to prepay) an aggregate principal amount of Term Loans equal to (A) 50% (such percentage as it may be reduced as described below, the Classmates IPO“ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements (such amount, the “ECP Prepayment Amount”), minus (B) the sum of (i) all voluntary prepayments of Term Loans during such fiscal year (including, for the avoidance of doubt, prepayments pursuant to Section 2.05(d) in an amount equal to: to the aggregate amount of cash used to make such prepayment) and
(ii) all voluntary prepayments of Revolving Credit Loans under the Credit Agreement during such fiscal year to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (i) and (ii), to the extent such prepayments are not funded with the proceeds of long-term Indebtedness or issuances of Equity Interests, in each case, during such fiscal year or, without duplication of any amounts deducted in any previous fiscal year, after year-end and prior to the time such prepayment is required pursuant to this Section 2.05(b); provided that (x) the ECF Percentage shall be 25% if the First Lien Senior Secured Leverage Ratio for the fiscal year covered by such financial statements was equal to or less than 4.00:1.00 and greater than 3.50:1.00 and (y) the ECF Percentage shall be 0% if the First Lien Senior Secured Leverage Ratio for the fiscal year covered by such financial statements was equal to or less than 3.50:1.00; provided, further, that no Excess Cash Flow payment shall be required if Excess Cash Flow during such year is equal to or less than the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO $14,370,000 and (y) $30,000,000 15.0% of Consolidated EBITDA for the Test Period most recently ended (and only amounts in excess thereof shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterprepaid).
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
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Sources: Credit Agreement
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Subject to Section 2.11(b)(vii), no later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2018, the Borrower shall prepay the outstanding principal amount of Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) 50% the aggregate principal amount of any voluntary prepayment, repurchase, redemption or other retirement of any First Lien Obligation pursuant to Section 2.11(a) of the net First Lien Credit Agreement (or, with respect to any First Lien Obligation other than any Loan (as defined in the First Lien Credit Agreement), the corresponding provision of the documentation governing any other First Lien Obligation) prior to such date, (y) the aggregate principal amount of any voluntary prepayment, repurchase, redemption or other retirement of any Second Lien Debt pursuant to Section 2.11(a) of this Agreement (or, with respect to any Second Lien Debt other than any Loan, the corresponding provision of the documentation governing any other Second Lien Debt) prior to such date and (z) (1) the amount of any reduction in the outstanding amount of any First Lien Obligation resulting from any assignment permitted or not restricted by this Agreement (including in connection with any Dutch Auction (as defined in the First Lien Credit Agreement) (or the equivalent term in the documentation governing any other First Lien Obligation) and/or (2) the amount of any reduction in the outstanding amount of any Second Lien Debt that is permitted under this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (z), based upon the actual amount of cash proceeds received by the Borrower paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayment made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of “Revolving Loans” (as defined in the First Lien Credit Agreement (or any equivalent term under any First Lien Facility), to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other long-term funded Indebtedness (yother than revolving Indebtedness) $30,000,000 of the Borrower or its Restricted Subsidiaries); provided that no prepayment under this Section 2.11(b) shall be applied required unless and to the extent that the amount thereof exceeds $5,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary of the Borrower) is also required to prepay any Second Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the date basis of the Classmates IPO toward aggregate outstanding principal amount of the Loans and the relevant Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of 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 Loans in accordance with the terms hereof.
(ii) Subject to Section 2.11(b)(vii), 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, in each case, in excess of $7,500,000 in any Fiscal Year, the Borrower shall apply an amount equal to the Required Net Proceeds Percentage of the 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 Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in the business of the Borrower and/or any subsidiary (other amounts than in Cash or Cash Equivalents), then so long as no Event of Default then exists, 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 450 days following receipt thereof, or (y) the Borrower or any subsidiary has committed to so reinvest the Subject Proceeds during such 450- day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 450-day 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 in Section 2.6(c). Each above (without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment shall would be made required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or repurchase any Other Applicable Indebtedness (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for pro rata basis to the first three fiscal quarters and 90 days in the case prepayment of the fourth quarter Subject Loans and to the repurchase or repayment of any fiscal year end. Notwithstanding the foregoing Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and without duplication under the definition 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 Excess Cash Flow, the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of Loans the Subject Proceeds required to be repaid 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 clause (bSection 2.11(b)(ii) for any fiscal quarter shall be reduced on a dollar for dollar basis 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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(iii) Subject to Section 2.11(b)(vii) and Section 2.12(c), in the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the amount Borrower or any of optional prepayments its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of any Class of Loans made pursuant to Section 2.5 during such fiscal quarter.
6.01(p), (cB) Amounts Incremental Loans incurred to be applied in connection with prepayments made refinance all or a portion of any Class of Loans pursuant to Section 2.6 shall be applied2.22, (C) Replacement Loans incurred to refinance all or any portion of any Class of Loans in accordance with the prepayment requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred to refinance all or a portion of the Loans in accordance with the requirements of Section 2.12(b6.01(z), in each case to the extent required by the terms thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon the receipt thereof (and in any event not later than two Business Days thereafter), apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of 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 Sections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the Borrower believes in good faith that repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law (including, for the avoidance of doubt, any Requirement of Law relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on “upstreaming” and/or “cross-streaming” of cash within a group and Requirements of Law relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of the Borrower and/or any of its Restricted Subsidiaries) 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, member of management or consultant of such Foreign Subsidiary (it being understood and agreed that (i) solely within 365 days following the end of the applicable Excess Cash Flow Period or 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 and (ii) if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, 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 such Excess Cash Flow or such Subject Proceeds as a result thereof) to the repayment of the 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 Sections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the Borrower determines in good faith that the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement) governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)),
(C) the Borrower 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 Excess Cash Flow is generated by any Foreign Subsidiary that is not a Loan Party or the relevant Subject Proceeds are received by any Foreign Subsidiary that is not a Loan Party, in each case, for so long as the Borrower determines in good faith that the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under an agreement permitted pursuant to Section 6.05 by which such Foreign Subsidiary is bound governing any Indebtedness; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
(D) 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 any amount required to mandatorily prepay the Loans pursuant to Sections 2.11(b)(i) or (ii) above would result in a material and adverse Tax liability (including any withholding Tax) (unless otherwise agreed such amount, a “Restricted Amount”), the amount that the Borrower shall be required to in writing mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by and among Lenders)the Restricted Amount; (provided that any to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds or Excess Cash Flow, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (D), shall be promptly applied to the repayment of the Loans pursuant to Section 2.11(b) as otherwise required above;
(v) Any Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined AmountsProceeds may be retained by the Borrower. Each prepayment For the avoidance of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provideddoubt, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.no Lender may rejec
Appears in 1 contract
Sources: Second Lien Credit Agreement (Shift4 Payments, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Subject to Section 2.05(b)(viii), commencing with the greater of (x) 50% first full fiscal year of the net cash proceeds received by Parents ending after the Borrower in connection with Closing Date, within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in related Compliance Certificate has been delivered pursuant to Section 2.6(c6.02(a).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on if the relevant Excess Cash Flow Application Dateof the Parents, apply the Borrower and the Restricted Subsidiaries is greater than $5,000,000, cause to be prepaid an aggregate principal amount of Term Loans (such aggregate amount, the “Excess Cash Flow Prepayment Amount”) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of $5,000,000, if any, for the fiscal year covered by such financial statements (commencing with the first full fiscal year ending after the Closing Date), minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buybacks made by any Parent, the Borrower or any Restricted Subsidiary in an amount equal to the amount actually paid in respect thereof) of Term Loans or “Term Loans” as defined in the First Lien Credit Agreement during such fiscal year or after such fiscal year and prior to the making of such Excess Cash Flow toward the prepayment payment and (2) all voluntary prepayments of the ABL Facility or any other revolving credit facility during such fiscal year or after such fiscal year and prior to the making of such ECF payment to the extent the commitments under the ABL Facility or other revolving credit facility, as applicable, are permanently reduced by the amount of such payments (any voluntary prepayments, made following the fiscal year end but prior to the making of such prepayment under this clause (B), an “After Year-End Payment”), except, in the case of each of the immediately preceding clauses (1) and (2), to the extent such prepayments are funded with the proceeds of Indebtedness (other than revolving loans) or any Cure Amounts; provided that (y) the ECF Percentage shall be reduced to 25% if the Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 4.75:1.00 and greater than or equal to 4.25:1.00 and (z) the ECF Percentage shall be reduced to 0% if the Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 4.25:1.00; provided, further, to the extent so elected by the Borrower, following the making of any After Year-End Payment, (i) the Senior Secured Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Payment as if payment was made during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow prepayment shall be determined by reference to such recalculated Senior Secured Leverage Ratio and (ii) such After Year-End Payment shall not be applied to the calculation of the Senior Secured Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow prepayment.
(ii) (A) Subject to Section 2.05(b)(ii)(B) and Section 2.05(b)(viii), if following the Closing Date (x) any Parent, the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party, or pursuant to clause (iii) of the proviso thereto), (e), (f), (g), (j), (k), (n), (o), (p), (q), (r) and (s)), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Parent, the Borrower or any Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of Term Loans and other amounts as set forth in Section 2.6(c). Each equal to 100% (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be made required pursuant to this Section 2.05(b)(ii)(A) (I) with respect to such portion of such 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 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing) or (II) until the aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein and not previously applied to such a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end prepayment exceeds $12,500,000 for the first three fiscal quarters and 90 days any single Disposition or series of related Dispositions or $25,000,000 in the case of the fourth quarter of any aggregate during such fiscal year end. Notwithstanding the foregoing (and without duplication under the definition thereafter only amounts in excess of Excess Cash Flow, the amount of Loans such thresholds shall be required to be repaid prepaid) and (2) if at the time that any such prepayment would be required, any Parent, the Borrower or any of the Restricted Subsidiaries is required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with the Liens securing the Obligations pursuant to this clause the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (b) for any fiscal quarter shall such Indebtedness required to be reduced offered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a dollar for dollar pro rata basis by (determined on the basis of the aggregate outstanding principal amount of optional prepayments of the Term Loans made pursuant to Section 2.5 during and Other Applicable Indebtedness at such fiscal quarter.
(ctime) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly (provided that (a) the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.12(bthe terms hereof and (b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may the extent the holders of Other Applicable Indebtedness decline any to have such prepayment (collectivelyindebtedness repurchased or prepaid, the “Declined Amount”), declined amount shall promptly (and in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to any event within five (5) Business Days after the date of such prepayment on rejection) be applied to prepay the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than Term Loans in accordance with the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2terms hereof.
Appears in 1 contract
Sources: Second Lien Term Loan Credit Agreement (Utz Quality Foods, LLC)
Mandatory Prepayments. (a) Upon If any Indebtedness shall be incurred or issued by any Group Member after the consummation of the Classmates IPOClosing Date (other than Excluded Indebtedness), an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such incurrence or issuance toward the prepayment of the Term Loans and other amounts accrued and unpaid interest thereon as set forth in Section 2.6(c4.2(e).
(b) If, for If on any date any Group Member shall receive Net Cash Proceeds in excess of $5,000,000 in any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31year from any Asset Sale or Recovery Event then, 2009, there unless a Reinvestment Notice shall be Excess Cash Flowdelivered in respect thereof, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50an amount equal to 100% of such Excess Net Cash Flow Proceeds shall be applied on such date toward the prepayment of the Term Loans and other amounts accrued and unpaid interest thereon as set forth in Section 2.6(c4.2(e). Each such prepayment ; 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 made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for applied toward the first three fiscal quarters and 90 days in the case prepayment of the fourth quarter of any fiscal year end. Notwithstanding the foregoing Term Loans and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to accrued and unpaid interest thereon as set forth in Section 2.5 during such fiscal quarter4.2(e).
(c) Amounts [reserved].If on the last Business Day of any week during the Maximum Cash Balance Period the aggregate amount of cash and Cash Equivalents of the Borrower and its Subsidiaries exceeds $75,000,000, then the amount of such cash and Cash Equivalents that exceeds $75,000,000 shall be applied promptly after such date toward the reduction of outstanding amounts under first, Swingline Loans and second, Revolving Loans, in each case, to the extent any are then outstanding and without resulting in a permanent reduction in any Revolving Commitments. 53
(d) [reserved].
(e) Unless any Increase Term Joinder or any other amendment governing any Incremental Term Loans, any Replacement Term Loans and/or any term loans provided by an Extending Term Lender provides that Incremental Term Loans, Replacement Term Loans or such term loans provided by an Extending Term Lender, as applicable, shall participate on a less than pro rata basis with the Initial Term Loans in connection with prepayments pursuant to this Section 4.2, each prepayment of Term Loans pursuant to this Section 4.2 shall be applied on a pro rata basis between the Initial Term Loans and each Additional Term Facility then outstanding based on the aggregate principal amount of the Term Loans under each such Term Facility then outstanding (provided, that any prepayment of Term Loans with the net proceeds of an Incremental Term Facility or Replacement Term Loans incurred for the purpose of refinancing or replacing such Term Loans shall be applied to the Term Loans of the applicable Term Facility being refinanced or replaced). With respect to Term Loans under any Term Facility, amounts to be applied in connection with prepayments made pursuant to this Section 2.6 4.2 shall be appliedapplied against the remaining scheduled installments of principal due in respect of the Term Loans of such Term Facility as directed by the Borrower (or, in the absence of direction from the Borrower, to the prepayment remaining scheduled amortization payments in respect of the Term Loans of such Term Facility in direct order of maturity), and each such prepayment shall be paid to the Term Lenders of such class in accordance with Section 2.12(b) (unless otherwise agreed 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans in writing a manner that minimizes the amount of any payments required to be made by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed Borrower pursuant to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined AmountsSection 4.11. Each prepayment of the Term Loans under this Section 2.6 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(f) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant Section 4.2(b), to decline all (but not a portion) of its share of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower; provided, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 4.2(a) above to the extent that such prepayment is made with the Net Cash Proceeds of any Permitted Refinancing incurred to refinance all or a portion of the Term Loans. If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its share of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s share of the total amount of such mandatory prepayment of Term Loans.
(g) Notwithstanding the foregoing, to the extent that (and for so long as) the repatriation to the Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Section 4.2(b) above that are attributable to any Foreign Subsidiary are (i) prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower or (ii) would result in a material and adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the calculation of Net Cash Proceeds shall be reduced by such Restricted Amount; provided, that if a Eurodollar Loan once such repatriation of any such affected Net Cash Proceeds is prepaid on any day other than (x) permitted under the last day applicable local Requirements of the Interest Period applicable theretoLaw and/or (y) would no longer result in such material and adverse Tax liability, the Borrower Group Members shall also pay any amounts owing pursuant be treated as having received Net Cash Proceeds equal to Section 2the amount of such reduction.
Appears in 1 contract
Mandatory Prepayments. (a) Upon On each date on which the consummation of Revolving Commitment Amount is reduced pursuant to Section 6.2.2, the Classmates IPOCompany shall prepay Revolving Loans in the amount, an amount equal to: (i) if any, by which the greater of (x) 50% of Revolving Outstandings exceed the net cash proceeds received Revolving Commitments after giving effect to such reduction. On each date on which the Acquisition Commitment Amount is reduced pursuant to Section 6.2.6, the Company shall prepay Acquisition Loans in the amount, if any, by which the Borrower in connection with Acquisition Loans exceed the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)Acquisition Commitments after giving effect to such reduction.
(b) If, for any fiscal quarter Within 95 days after the end of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Floweach Fiscal Year, the Borrower shall, Company shall make a prepayment of the Term Loans and (on and after the relevant Acquisition Termination Date) the Acquisition Loans in an amount equal to the Specified Percentage (as defined below) of Excess Cash Flow Application for such Fiscal Year. The "Specified Percentage" shall be (i) 75% until the date on which the Company has delivered financial statements demonstrating that the Funded Debt to Adjusted EBITDA Ratio has been less than 3.0 to 1.0 as of the last day of two consecutive Fiscal Quarters and (ii) 50% thereafter.
(c) Concurrently with the receipt by the Company or any Subsidiary of any Applicable Asset Sale Proceeds, the Company shall make a prepayment of the Term Loans and (on and after the Acquisition Termination Date, apply 50) the Acquisition Loans in an amount equal to 100% of such Excess Cash Flow toward the prepayment Applicable Asset Sale Proceeds (rounded down, if necessary, to an integral multiple of the Loans and other amounts as set forth in Section 2.6(c$100,000). Each ; provided that no such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for required unless the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the aggregate amount of Applicable Asset Sale Proceeds so received together with all Applicable Asset Sale Proceeds previously received and not previously applied to prepay Term Loans required to be repaid and Acquisition Loans pursuant to this clause (bc) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterexceeds $100,000.
(cd) Amounts Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from the issuance of any Debt (other than Debt permitted by Section 10.7), the Company shall make a prepayment of the Term Loans and (on and after the Acquisition Termination Date) the Acquisition Loans in an amount equal to be applied 100% of such Net Cash Proceeds.
(e) Concurrently with the receipt by the Company or any Subsidiary of any Net Cash Proceeds from the issuance of any equity securities of the Company or any Subsidiary (other than issuances to employees in aggregate amount not to exceed $1,000,000, issuances to GTCR and its Affiliates, and issuances in connection with prepayments made pursuant acquisitions approved by the Required Banks), the Company shall make a prepayment of the Term Loans and (on and after the Acquisition Termination Date) the Acquisition Loans in an amount equal to 100% of such Net Cash Proceeds.
(f) In the event a prepayment of Subordinated Loans would be required under the Subordinated Loan Agreement by reason of excess cash flow, asset sale proceeds, debt issuance proceeds or equity issuance proceeds, including under Section 2.6 3.5 of the Subordinated Loan Agreement, but a prepayment of Loans hereunder would not otherwise be required, the Company shall be applied, to the make a prepayment of the Loans in accordance with Section 2.12(b) (unless the amount that would otherwise agreed be required to in writing by and among Lenders); (provided that any Lender may decline any be prepaid on the Subordinated Loans, on the Business Day preceding the otherwise required date of prepayment under the Subordinated Loan Agreement, such prepayment (collectively, to be applied among the “Declined Amount”), in which case the Declined Amount shall be distributed Loans and/or to the prepayment, on a pro rata basis, reduction of the Loans held by Lenders that have elected to accept such Declined Amounts. Each Revolving Commitment Amount and the Acquisition Commitment Amount as provided for the source of prepayment in the foregoing clauses (b) through (e) of the Loans under this Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 26.3.2.
Appears in 1 contract
Mandatory Prepayments. (a) Upon If any Indebtedness (other than any Indebtedness permitted to be incurred in accordance with Section 7.1 or Section 7.10) shall be incurred by the consummation Parent Companies, the Borrowers or any of the Classmates IPORestricted Subsidiaries, the Borrowers shall pay an amount equal to 100% of the Net Cash Proceeds of such Indebtedness within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 2.14.
(b) If on any date any of the Parent Companies, the Borrowers or any of the Restricted Subsidiaries shall for its own account receive Net Cash Proceeds from any Asset Sale (other than any Asset Sale that is of ABL Priority Collateral (as defined in the Intercreditor Agreement)) in excess of an aggregate amount of $5,000,000 per fiscal year or any Recovery Event (other than any Recovery Event that is of ABL Priority Collateral (as defined in the Intercreditor Agreement)) in excess of an aggregate amount of $5,000,000 per fiscal year then, unless a Reinvestment Notice shall be delivered in respect thereof, the Borrowers shall pay an amount equal to 100% of such Net Cash Proceeds within three Business Days of the date of receipt thereof to the Administrative Agent to be applied to the Obligations in accordance with Section 2.14; provided that notwithstanding the foregoing, (i) on each Reinvestment Prepayment Date, an amount equal to: (i) to the greater of (x) 50% of Reinvestment Prepayment Amount with respect to the net cash proceeds received by relevant Reinvestment Event shall be paid to the Borrower Administrative Agent to be applied to the Obligations in connection accordance with the Classmates IPO Section 2.14 and (yii) $30,000,000 shall be applied 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 Classmates IPO toward relevant Reinvestment Event not actually expended by such Trigger Date shall be paid to the prepayment of Administrative Agent to be applied to the Loans and other amounts as set forth Obligations in accordance with Section 2.6(c)2.14.
(bc) If, for any fiscal quarter year of Borrower beginning the Borrowers commencing with the fiscal quarter year ending March December 31, 20092013, there shall be Excess Cash Flow, the Borrower Borrowers shall, on the relevant Excess Cash Flow Application DateDate thereafter, apply 50% pay an amount equal to the Excess Cash Flow Percentage of such Excess Cash Flow toward to the prepayment of Administrative Agent to be applied to the Loans and other amounts as set forth Obligations in accordance with Section 2.6(c)2.14. Each such prepayment payment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days five Business Days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans date financial statements are required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made delivered pursuant to Section 2.5 during such fiscal quarter5.1(b).
(cd) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 2.8 shall be applied, applied to the prepayment of the Loans Obligations in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 22.14.
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Mandatory Prepayments. (a1) Upon No later than the consummation fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Excess Cash Flow Period ending on or about December 31, 2024, the Borrower shall prepay the outstanding principal amount of Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to: to (iA) the greater Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (1) (x) 50% the aggregate principal amount of any voluntary prepayment, repurchase, redemption or other retirement of any First Lien Debt pursuant to Section 2.11(a) of this Agreement (or, with respect to any First Lien Debt other than any Loan, the corresponding provision of the net documentation governing any other First Lien Debt) prior to the date such payment is due, and (y) the amount of any reduction in the outstanding amount of any First Lien Debt resulting from any assignment made in accordance with Section 9.05(g) or any functionally equivalent provision in the definitive documentation with respect to any other First Lien Debt (including in connection with any Dutch Auction (or the equivalent term in the documentation governing any other First Lien Debt)) prior to the date such payment is due and, in each case under this clause (y), based upon the actual amount of cash proceeds received by the Borrower paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayment made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of revolving loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of any such prepayment, to the extent that such prepayment was not financed with the proceeds of other long-term funded Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries), (2) the amount applied (or contractually committed to be applied) prior to or, at the election of the Borrower, during the four consecutive Fiscal Quarters after such date for, to the extent not deducted in the calculation of Consolidated Net Income, capital expenditures, acquisitions and/or other Investments and other Scheduled Consideration (provided that, any cash that is not paid in respect of such cash capital expenditures, acquisitions or similar Investments in such four consecutive Fiscal Quarter period shall be added back to Excess Cash Flow in the next Excess Cash Flow Period) and (3) to the extent set forth in a certificate delivered to the Administrative Agent on or prior to the date such payment is due, any amount of cash that is budgeted or otherwise reasonably expected to be paid in respect of planned cash capital expenditures, acquisitions or similar Investments to be consummated or made during the four consecutive Fiscal Quarters after such date (provided that, any cash that is not paid in respect of such cash capital expenditures, acquisitions or similar Investments in such four consecutive Fiscal Quarter period shall be added back to Excess Cash Flow in the next Excess Cash Flow Period) (in the case of any such amount described under clause (2) or (3), to the extent not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)), provided that no prepayment under this Section 2.11(b) shall be required unless and to the extent that the amount thereof exceeds $15,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary of the Borrower) is also required to prepay any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of 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 Term Loans in accordance with the terms hereof.
(2) 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 (other than Net Proceeds and Net Insurance/Condemnation Proceeds in respect of ABL Priority Collateral), in each case, in excess of $20,000,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% of the 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 ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower elects to reinvest (or commit to reinvest) the Subject Proceeds in assets used or useful in the business of the Borrower and/or any Restricted Subsidiary (other than in Cash or Cash Equivalents), 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 540 days following receipt thereof, or (y) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 540-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 540-day period; it being understood that (1) the Borrower may elect to deem expenditures that otherwise would be permissible reinvestments that occur prior to receipt of such proceeds to have been reinvested in accordance with the terms of this clause (ii), so long as such deemed expenditure shall have been made no earlier than the earlier of (I) the execution of a definitive agreement for such Prepayment Asset Sale and (y) $30,000,000 shall be applied on the date consummation of such Prepayment Asset Sale and (2) if the Subject Proceeds have not been so reinvested prior to the expiration of the Classmates IPO toward applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso) 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 repay or repurchase any Other Applicable Indebtedness (or offer to repurchase such 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 other amounts as set forth 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 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 Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning accordance with the fiscal quarter ending March 31terms hereof), 2009, there shall be Excess Cash Flow, and the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% amount of such Excess Cash Flow toward the prepayment of the Subject Loans and other amounts as set forth in that would have otherwise been required pursuant to this Section 2.6(c). Each such prepayment 2.11(b)(ii) shall be made on a 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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof. Notwithstanding anything to the contrary herein, for purposes of this clause (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days ii), in the case of the fourth quarter Net Proceeds in respect of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition Prepayment Asset Sale or Net Insurance/Condemnation Proceeds in respect of Excess Cash FlowTerm Loan Priority Collateral, the amount ABL Credit Agreement and any other indebtedness that is secured on a junior priority basis relative to the Liens securing the Obligations in respect of Loans required such Term Loan Priority Collateral shall not constitute Other Applicable Indebtedness.
(3) In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be repaid incurred under Section 6.01, except to the extent the relevant Indebtedness constitutes (A) Refinancing Indebtedness (including Replacement Debt) incurred to refinance all or a portion of any Class of Term Loans pursuant to this Section 6.01(p), (B) Incremental Loans incurred in reliance on clause (b) for of the definition of “Incremental Cap” to refinance all or a portion of any fiscal quarter shall be reduced on a dollar for dollar basis by the amount Class of optional prepayments of Term Loans made pursuant to Section 2.5 during such fiscal quarter.
2.22, (cC) Amounts Replacement Term Loans incurred to be applied refinance all or any portion of any Class of Term Loans in connection accordance with prepayments made pursuant the requirements of Section 9.02(c) and/or (D) Incremental Equivalent Debt incurred in reliance on clause (b) of the definition of “Incremental Cap” to Section 2.6 shall be applied, to the prepayment refinance all or a portion of the Loans in accordance with the requirements of Section 2.12(b6.01(z), in each case to the extent required by the terms thereof to prepay or offer to prepay such Indebtedness), the Borrower shall, promptly upon (and in any event not later than two Business Days thereafter) the receipt of such Net Proceeds by the Borrower or its 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.
(4) 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 Sections 2.11(b)(i), (ii) or (iii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary or the relevant Indebtedness is incurred by any Foreign Subsidiary (except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred by any Foreign Subsidiary to refinance all or a portion of the Initial Term Loans or Additional Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 9.02(c)), as the case may be, for so long as the Borrower determines in good faith that repatriation to the Borrower of any such amount would be prohibited or delayed under any Requirement of Law (including, for the avoidance of doubt, any Requirement of Law relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on “upstreaming” and/or “cross-streaming” of cash within a group and Requirements of Law relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons)) 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, member of management or consultant of such Foreign Subsidiary (it being understood and agreed that (i) solely within 365 days following the end of the applicable Excess Cash Flow Period or 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 and (ii) if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, an amount equal to the relevant Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after any such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow or such Subject Proceeds as a result thereof, to the extent not already taken into account in computing such Excess Cash Flow or Subject Proceeds, as applicable) 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))),
(b) the Borrower 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 Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the Borrower determines in good faith that the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents (or any relevant shareholders’ or similar agreement) governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, an amount equal to the relevant Excess Cash Flow or Subject Proceeds, as the case may be, 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 determines in good faith that the repatriation (including by an intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amount required to mandatorily prepay the Term Loans pursuant to Sections 2.11(b)(i), (ii) or (iii) above would result in a material adverse Tax consequence (including any withholding Tax) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectivelyamount, the a “Declined Restricted Amount”), in which case the Declined Amount amount that the Borrower is required to mandatorily prepay pursuant to Sections 2.11(b)(i), (ii) or (iii) above, as applicable, shall be distributed reduced by the Restricted Amount; provided that to the prepayment, on a pro rata basis, extent that the repatriation (including by an intercompany distribution) of the Loans held by Lenders that have elected to accept relevant Subject Proceeds, Excess Cash Flow or the Net Proceeds in respect of any such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; providedIndebtedness, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.directly or indirec
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Mandatory Prepayments. (a) Upon Within five (5) Business Days after financial statements have been delivered or required to be delivered pursuant to Section 6.1(a), commencing with the consummation fiscal year ended December 31, 2021, if, and solely to the extent, Excess Cash Flow for any Fiscal Year exceeds $1,000,000, the Borrower shall prepay, or cause to be prepaid, an aggregate principal amount of Loans equal to 50% of Excess Cash Flow (the “ECF Percentage”), if any, for the fiscal year covered by such financial statements; provided, that the ECF Percentage shall be reduced to 25% when the Consolidated Total Leverage Ratio as of the Classmates IPOlast date of the applicable fiscal year is less than or equal to 4.00 to 1.00 and shall be reduced to 0% when the Consolidated Total Leverage Ratio as of the last date of the applicable fiscal year is less than or equal to 3.50 to 1.00.
(b) Subject to the payment of the amounts described in Section 2.7, if any Indebtedness shall be incurred by the Borrower or any Subsidiary thereof (excluding any Indebtedness incurred in accordance with Section 7.2), an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such incurrence toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.6(d).
(bc) IfIf on any date the Borrower or any Subsidiary thereof shall receive Net Cash Proceeds from any Asset Sale (excluding an Asset Sale constituting the issuance of Capital Stock issued by the Borrower) or Recovery Event, for any fiscal quarter an amount equal to 100% of Borrower beginning with the fiscal quarter ending March 31, 2009, there Net Cash Proceeds thereof shall be Excess Cash Flowapplied, the Borrower shallwithin five (5) Business Days of receiving such proceeds, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward to the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.6(d). Each ; provided that if the Borrower shall deliver to the Administrative Agent a certificate of a Responsible Officer to the effect that the Loan Parties intend to apply such Net Cash Proceeds from such event (or a portion thereof specified in such certificate), within three hundred sixty-five (365) days after receipt of such Net Cash Proceeds (or if the Borrower or any Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within three hundred sixty-five (365) days following receipt thereof, within one hundred eighty (180) days following the expiration of such three hundred sixty-five (365) day period), to acquire (or replace or rebuild) assets (excluding cash or Cash Equivalents) to be used in the business of the Borrower and its Subsidiaries, and certifying that no Event of Default has occurred and is continuing, then no prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause paragraph in respect of the Net Cash Proceeds specified in such certificate; provided further that to the extent of any such Net Cash Proceeds that have not been so applied by the end of such period (bor such later period reasonably agreed to in writing (which may be by e-mail) for any fiscal quarter by the Required Lenders), a prepayment shall be reduced on a dollar for dollar basis by the required at such time in an amount of optional prepayments of Loans made pursuant equal to Section 2.5 during such fiscal quarterNet Cash Proceeds that have not been so applied.
(cd) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 shall be applied, applied to the Loans in the manner specified by the Borrower in the applicable prepayment of the Loans notice, in each case, in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided, that in the absence of any direction provided that any Lender may decline any by Borrower, Section 2.12(b) shall control for the application of such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under this Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if . The Borrower shall deliver to the Administrative Agent (and the Administrative Agent shall promptly notify each Lender)
(i) a Eurodollar Loan is prepaid on any day other than the last day notice of each prepayment of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing Loans in whole or in part pursuant to this Section 22.6 by noon not less than three (3) Business Days (or such shorter period reasonably acceptable to the Administrative Agent) prior to the date such prepayment shall be made (each, a “Prepayment Date”). Such notice shall set forth (x) the Prepayment Date, (y) the aggregate amount of such prepayment and (z) the applicable clause under this Section 2.6 that such prepayment relates to, and (ii) a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment.
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Sources: Credit Agreement (Town Sports International Holdings Inc)
Mandatory Prepayments. (a) Upon [Reserved].
(b) If, following the consummation Closing Date, the Borrower or any Restricted Subsidiary incurs or issues any (A) Refinancing Term Loans, (B) Indebtedness pursuant to Section 7.2(s) or (C) Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.2, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the Classmates IPOdate which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(c) Following the Closing Date, an amount equal to: (i) if on any date any Group Member shall receive Net Cash Proceeds in excess of the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO $3,750,000 and (y) $30,000,000 3% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Reference Period from any Asset Sale or Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof, the Borrower shall prepay the Loans and other amounts as set forth in Section 2.12(e) in an amount equal to 100% of such Net Cash Proceeds on such date; 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 on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.12(e).
(bd) If, for any fiscal quarter year of Borrower beginning the Borrower, commencing with the fiscal quarter year ending March December 31, 20092020, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.12(e); provided, that such percentage shall be reduced to (i) 25% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is equal to or less than 3.50 to 1.00 but greater than 2.75 to 1.00 and (ii) 0% if the Consolidated Net Leverage Ratio as of the last day of such fiscal year is equal to or less than 2.75 to 1.00. Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than 45 days after each fiscal quarter end the earliest of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the first three fiscal quarters year with respect to which such prepayment is made, are required to be delivered to the Administrative Agent, (ii) the date such financial statements are actually delivered; and 90 days provided, further, that for any fiscal year, voluntary prepayments of all Loans, including any Loans pursuant to any Increase (including the prepayment at a discount to par, with credit given to the actual cash amount of the payment, but excluding prepayments funded with the proceeds of long-term indebtedness (other than Revolving Loans) and, subject in the case of any prepayment of Revolving Loans, only to the fourth quarter of any fiscal year end. Notwithstanding extent the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be Total Revolving Commitments are permanently reduced on a dollar for dollar basis by the amount of optional prepayments of Loans such repayment), made pursuant to Section 2.5 during such fiscal quarteryear or after year-end and prior to the time such Excess Cash Flow prepayment is due (provided, that any such prepayments made after year-end and prior to the applicable Excess Cash Flow Application Date shall be applied pro rata to all remaining scheduled amortization payments under the Term Facility (including any Additional Term Loans) (i.e., as a mandatory prepayment as opposed to an optional repayment)) and be credited against Excess Cash Flow prepayment obligations on a dollar-for-dollar basis for such fiscal year (without duplication of any such credit in any prior or subsequent fiscal year) (with the Consolidated Net Leverage Ratio of Borrower for purposes of determining the applicable Excess Cash Flow percentage above recalculated to give pro forma effect to any cash pay down or reductions made prior to the making of such prepayment).
(ce) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 2.12 shall be applied, applied to the prepayment of installments due in respect of the Term Loans in direct order of maturity to the first eight amortization payments scheduled to occur under the Term Facility (including any Additional Term Loans) and, thereafter, pro rata to all remaining scheduled amortization payments under the Term Facility (including any Additional Term Loans) and in accordance with Section 2.12(bSections 2.3 and 2.18(b) (unless otherwise agreed to in writing by and among Lenders); (provided 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 offered ratably to the prepaymentaccepting Lenders, on a pro rata basis, of and if declined thereby may be retained by the Loans held by Lenders that have elected to accept such Declined AmountsBorrower and its Restricted Subsidiaries and increase the Available Amount in accordance with the definition thereof. Each prepayment of the Loans under this Section 2.6 2.12 (except in the case of Revolving Loans that are ABR Loans, in the event the Revolving Commitments have not been terminated) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid. The Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.12 not less than 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 options of each Term Lender to decline or accept its share of such prepayment. Any Term Lender that wishes to exercise its option to decline such prepayment shall notify the Administrative Agent by facsimile not later than three (3) Business Days prior to the Mandatory Prepayment Date (it being understood that any Term Lender that does not notify the Administrative Agent of its election not later than three (3) Business Days prior to the Mandatory Prepayment Date shall be deemed to have elected to accept its share of such prepayment).
(f) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount of such prepayment or reduction (and the Administrative Agent shall promptly provide the same to each Lender). Each notice of prepayment shall specify the prepayment or reduction date, the Type of each Loan being prepaid and the principal amount of each Loan (or portion thereof) to be prepaid.
(g) No prepayment fee shall be payable in respect of any mandatory prepayments made pursuant to this Section 2.12 (for the avoidance of doubt, other than any mandatory prepayments constituting a Repricing Transaction).
(h) Notwithstanding any other provisions of this Section 2.12, (i) to the extent that any or all of the 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 any Excess Cash Flow attributable to a Foreign Subsidiary, are prohibited or delayed by applicable local law from being repatriated to the United States, the Borrower will not be required to repay Term Loans at the times provided in Section 2.12 in an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected so long, but only so long, as the applicable local law will not permit repatriation of such Net Cash Proceeds or Excess Cash Flow to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions reasonably requested by the Administrative Agent, or as may be required by applicable local law, to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local law, such repatriation will be promptly 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 by the Borrower (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.12 to the extent provided herein and (ii) to the extent that the Borrower has determined in good faith and in consultation with the Administrative Agent that repatriation of any of or all the Net Cash Proceeds of any 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 Borrower will not be required to repay Term Loans at the times provided in Section 2.12 in an amount equal to the Net Cash Proceeds or Excess Cash Flow so affected; provided, that in the case of either clause (i) or (ii), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to Section 2.12(c) (or such Excess Cash Flow would have been so required if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretoit were Net Cash Proceeds), the Borrower shall also pay 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 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 calculated if received by such Foreign Subsidiary). The non-application of any prepayment amounts owing pursuant to Section 2as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a Default or an Event of Default.
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Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2020, the Borrower shall prepay the outstanding principal amount of Term Loans then subject to ratable prepayment requirements in accordance with clause (vii) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and the Restricted Subsidiaries for the Fiscal Year then ended, minus, without duplication of amounts reducing Excess Cash Flow, (B) at the option of the Borrower, the aggregate principal amount of (x) 50% of the net cash proceeds received any Term Loans (excluding any Incremental Term Loans that are not secured by the Collateral) and any Revolving Loans (to the extent accompanied by a permanent reduction in the Revolving Credit Commitment) (excluding any Incremental Revolving Loans that are not secured by the Collateral on a first lien basis), and (y) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made to the Borrower or any of its Subsidiaries made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to the date of prepayment pursuant to this Section 2.11(b)(i), in the case of this clause (y), based upon the actual amount of cash paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayments (I) made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of revolving Indebtedness, to the extent accompanied by a permanent reduction in the relevant commitment, and (II) in the case of all such prepayments, solely to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or the Restricted Subsidiaries or proceeds constituting a Cure Amount); provided that any such Excess Cash Flow prepayment shall be required only to the extent the amount of such prepayment exceeds $5,000,000; provided, further, that if at the time that any such prepayment would be required, the LEGAL_US_E # 159035042.9 Borrower or any Restricted Subsidiary is required to prepay, repay or repurchase (or offer to prepay, repay or repurchase) any other Indebtedness that is secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness with any portion of the ECF Prepayment Amount (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 ECF Prepayment Amount on a pro rata basis to the prepayment of the Term Loans and to the repurchase, prepayment or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term 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 ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of the ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of the ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof), and the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) 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 such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(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, in each case, in excess of (x) $7,000,000 in a single transaction or series of related transactions or (y) $30,000,000 in the aggregate for all such transactions after the Closing Date, the Borrower shall be applied on apply an amount equal to the Required Prepayment Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vii) below; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Classmates IPO toward Borrower or any Restricted Subsidiary, then so long as no Event of Default then exists, 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 365 days following receipt thereof, or (y) the Borrower or any Restricted Subsidiary has committed to so reinvest the Subject Proceeds during such 365-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 365-day 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 outstanding principal amount of the Subject Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any Restricted Subsidiary is required to prepay, repay or repurchase (or offer to prepay, repay or repurchase) any Other Applicable Indebtedness with any portion of the Subject Proceeds, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and other amounts as set forth to the repurchase, prepayment 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 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 LEGAL_US_E # 159035042.9 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 2.6(c)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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(biii) IfIn the event that the Borrower or any Restricted Subsidiary (x) receives Net Proceeds from the issuance or incurrence of (A) Indebtedness by the Borrower or any Restricted Subsidiary that is not permitted under Section 6.01, for (B) Indebtedness that constitutes (I) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), (II) Incremental Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22 or (III) Replacement Term Loans incurred to refinance all or any fiscal quarter portion of Borrower beginning the Term Loans in accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrequirements of Section 9.02(c), the Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or such Restricted Subsidiary, as the case may be, apply an amount equal to 100.0% of such Net Proceeds to prepay the outstanding principal amount of the relevant Term Loans in accordance with clause (vii) below or (y) obtains a Replacement Revolving Facility, the Borrower shall comply with Section 9.02(c)(ii)(I);
(iv) [Reserved].
(v) Notwithstanding anything in this Section 2.11(b) to the contrary:
(A) if the Borrower determines in good faith that the repatriation to the Borrower of any amount of the relevant Excess Cash Flow Application Dategenerated by any Foreign Subsidiary, apply 50% the Net Proceeds of the relevant Prepayment Asset Sale consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds received by any Foreign Subsidiary, as the case may be, that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) above would be prohibited 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 or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (such amount, a “Restricted Foreign Subsidiary Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Foreign Subsidiary Amount; it being understood that if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 would reasonably be 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 end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will to the extent then available promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, will be applied promptly after such repatriation (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)(A)),
(B) if the Borrower determines in good faith that the distribution to the Borrower of the relevant Excess Cash Flow generated by any joint venture or the LEGAL_US_E # 159035042.9 relevant Subject Proceeds received by any joint venture to prepay any amount of such Excess Cash Flow toward or Subject Proceeds that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) above would be prohibited under the prepayment Organizational Documents governing such joint venture (such amount, a “Restricted Joint Venture Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Joint Venture Amount; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “applicable Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for Period or the first three fiscal quarters and 90 days in event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute to the Borrower to the extent then available the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and such Excess Cash Flow or Subject Proceeds (net of additional Taxes payable or reserved against as a result of such distribution) will be applied promptly after such distribution to the repayment of the fourth quarter Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (v)(B)),
(C) if the Borrower determines in good faith that the repatriation to the Borrower or any dividend or other distribution, as applicable, to the Borrower of any fiscal year end. Notwithstanding amounts required to mandatorily prepay the foregoing and without duplication under Term Loans pursuant to Sections 2.11(b)(i) or (ii) above would result in a material Tax liability (including any withholding Tax) (such amount, a “Restricted Tax Amount”), the definition amount that the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Tax Amount; provided that to the extent that within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, such repatriation or dividend or other distribution, as applicable, of the relevant Subject Proceeds or Excess Cash Flow to the Borrower would no longer result in a material Tax liability, to the extent then available the Subject Proceeds or Excess Cash Flow, as applicable, will be promptly repatriated or paid as a dividend or otherwise distributed to the amount Borrower and will be applied promptly thereafter (net of additional Taxes payable or reserved against as a result of such repatriation, dividend or other distribution, as applicable) 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)(C));
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
clause (c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”i), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, (ii) or (iii) of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under this Section 2.6 shall be accompanied by accrued interest 2.11(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment on and provide a reasonably detailed calculation of the amount prepaid; providedof such prepayment. The Administrative Agent will promptly notify each applicable Lender of the contents of any such notice from the Borrower and of such Lender’s Applicable Percentage of the prepayment. Each Term Lender will have the right to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 12:00 p.m. two (2) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment (provided that if any Lender fails to deliver a Eurodollar Loan is prepaid on Rejection Notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any day other than mandatory prepayment of Term Loans within the last day time frame specified above, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the Interest Period applicable theretototal amount of such mandatory prepayment); provided that (A) in the event that any Term Lender elects to decline receipt of such Declined Proceeds, the remaining amount thereof may be retained by the Borrower shall also pay and (B) for the avoidance of doubt, no Lender LEGAL_US_E # 159035042.9 may reject any amounts owing prepayment made under Section 2.11(b)(iii) to the extent that such prepayment is made with the Net Proceeds of (x) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 26.01(p), (y) Incremental Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22 or (z) Replacement Term Loans incurred to refinance all or any portion of the Term Loans in accordance with the requirements of Section 9.02(c).
(vii) Except as otherwise provided in any Refinancing Amendment, any Incremental Facility Amendment or any Extension Amendment, each prepayment of Term Loans pursuant to this Section 2.11(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the Net Proceeds of any Refinancing Indebtedness, Incremental Term Facility or Replacement
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Mandatory Prepayments. (a) Upon If and to the consummation extent at the end of the Classmates IPO, an amount equal to: a fiscal quarter:
(i) the greater sum of, (A) the outstanding indebtedness under the 2016 Indenture, plus (B) the Outstanding Amount (excluding the amount of L/C Obligations under Performance Letters of Credit) under this Agreement, plus (C) unsecured Consolidated Debt that (x) 50% contains any financial covenant or test which when not met results in an Event of the net cash proceeds received by the Borrower in connection with the Classmates IPO Default and (y) $30,000,000 shall be applied has a maturity date on or prior to the Class A Revolving Facility Termination Date, plus (D) funded debt of the Borrower and its Subsidiaries (excluding the Excluded Subsidiaries) that contains a permitted lien provision that is more restrictive than Sections 6.02(b)(i) and (c) of the Borrower’s 2021 senior note indenture as in effect on the date hereof with respect to the amount of funded debt that may be secured by liens without securing such funded debt equally and ratably, exceeds
(ii) an amount equal to 60% of the Classmates IPO toward the prepayment book value of the Loans and other amounts as set forth in Section 2.6(c).
(b) IfMandatory Prepayment Test Assets, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowthen, the Borrower shall, on shall reduce the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis Outstanding Amount by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) excess. Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 2.8 shall be applied, first, to the prepayment of Swingline Loans, second, to the prepayment of Revolving Loans, and third, if the aggregate principal amount of Revolving Loans in accordance with Section 2.12(b) and Swingline Loans then-outstanding is less than the amount of such amount prepaid (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”because L/C Obligations constitute a portion thereof), Borrower shall, to the extent of the balance, replace outstanding Letters of Credit and/or Cash Collateralize such L/C Obligations in which case an amount not less than the Declined Amount Minimum Collateral Amount. Mandatory prepayments hereunder shall be distributed to the prepayment, on a applied pro rata basis, of between the Class A Revolving Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of and the Class B Revolving Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment based on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2each Lender’s Revolving Percentage.
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Mandatory Prepayments. Within five days after delivery to Agent of Borrowers’ audited annual financial statements pursuant to Section 9.1.2 (a) Upon the consummation “ECF Payment Date”), commencing with the delivery to Agent of the Classmates IPOaudited annual financial statements for the Fiscal Year ending December 31, 2017, Borrowers shall (i) deliver to Agent a written calculation of Excess Cash Flow for such Fiscal Year, certified by a Senior Officer of the Ultimate Parent, and (ii) (A) if the Leverage Ratio is greater than 3.25:1.00 as of the last day of such Fiscal Year, prepay the outstanding principal amount of the Term Loans in an amount equal to: to the result of (ito the extent positive) (1) 75% of the Excess Cash Flow of the Ultimate Parent and its Subsidiaries for such Fiscal Year minus (2) the greater aggregate principal amount of all payments made by the Borrowers pursuant to Section 5.2.3 for such Fiscal Year or, at the option of the Borrowers, prior to the ECF Payment Date, so long as, to the extent any deduction is made pursuant to the foregoing clause (2) after such Fiscal Year and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding Fiscal Year, or (B) if the Leverage Ratio is less than or equal to 3.25:1.00 as of the last day of such Fiscal Year, prepay the outstanding principal amount of the Term Loans in an amount equal to the result of (xto the extent positive) (1) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application of the Ultimate Parent and its Subsidiaries for such Fiscal Year minus (2) the aggregate principal amount of all payments made by the Borrowers pursuant to Section 5.2.3 for such Fiscal Year or, at the option of the Borrowers, prior to the ECF Payment Date, apply 50% of so long as, to the extent any deduction is made pursuant to the foregoing clause (2) after such Fiscal Year and prior to when such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each is due, such prepayment shall not be made on a date deducted with respect to the Excess Cash Flow prepayment for the succeeding Fiscal Year (an the “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Payment Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan the Payment Conditions are not satisfied at the time such payment is prepaid due, Borrowers shall pay such portion of the Excess Cash Flow Payment Amount permitted to be paid on any day other than such date, if any, and shall on the last first day of each month thereafter, pay such portion of the Interest Period applicable thereto, unpaid amount of the Borrower shall also pay any amounts owing pursuant Excess Cash Flow Payment Amount permitted to Section 2.be paid such that the Payment Conditions are satisfied until such time as the entire Excess Cash Flow Payment Amount has been paid in full;
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Sources: Financing Agreement (Select Interior Concepts, Inc.)
Mandatory Prepayments. (ai) Upon Within five days after delivery to Agent of Borrowers' audited annual financial statements pursuant to Section 9.1.2 (the consummation "ECF Payment Date"), commencing with the delivery to Agent of the Classmates IPOaudited annual financial statements for the Fiscal Year ending December 31, 2020, Borrowers shall (i) deliver to Agent a written calculation of Excess Cash Flow for such Fiscal Year, certified by a Senior Officer of the Ultimate Parent, and (ii) (A) if the Leverage Ratio is greater than 3.25:1.00 as of the last day of such Fiscal Year, prepay the outstanding principal amount of the Term Loans in an amount equal to: to the result of (ito the extent positive) (1) 75% of the Excess Cash Flow of the Ultimate Parent and its Subsidiaries for such Fiscal Year minus (2) the greater aggregate principal amount of all payments made by the Borrowers pursuant to Section 5.2.3 for such Fiscal Year or, at the option of the Borrowers, prior to the ECF Payment Date, so long as, to the extent any deduction is made pursuant to the foregoing clause (2) after such Fiscal Year and prior to when such Excess Cash Flow prepayment is due, such prepayment shall not be deducted with respect to the Excess Cash Flow prepayment for the succeeding Fiscal Year, or (B) if the Leverage Ratio is less than or equal to 3.25:1.00 as of the last day of such Fiscal Year, prepay the outstanding principal amount of the Term Loans in an amount equal to the result of (xto the extent positive) (1) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application of the Ultimate Parent and its Subsidiaries for such Fiscal Year minus (2) the aggregate principal amount of all payments made by the Borrowers pursuant to Section 5.2.3 for such Fiscal Year or, at the option of the Borrowers, prior to the ECF Payment Date, apply 50% of so long as, to the extent any deduction is made pursuant to the foregoing clause (2) after such Fiscal Year and prior to when such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each is due, such prepayment shall not be made on a date (an “deducted with respect to the Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end prepayment for the first three fiscal quarters and 90 days in succeeding Fiscal Year (the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of "Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among LendersFlow Payment Amount"); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if the Payment Conditions are not satisfied at the time such payment is due, Borrowers shall pay such portion of the Excess Cash Flow Payment Amount permitted to be paid on such date, if any, and shall on the first day of each month thereafter, pay such portion of the unpaid amount of the Excess Cash Flow Payment Amount permitted to be paid such that the Payment Conditions are satisfied until such time as the entire Excess Cash Flow Payment Amount has been paid in full;
(ii) Concurrently with any disposition of assets of an Obligor in excess of $750,000 in any Fiscal Year (excluding the sale or other transfer of Inventory and Accounts in the Ordinary Course of Business), Borrowers shall prepay the Term Loan in an amount equal to the Net Proceeds of such disposition; provided that so long as no Event of Default shall have occurred and be continuing, the recipient of any such Net Proceeds may reinvest such Net Proceeds within (i) 180 days of such disposition in replacement assets performing the same or similar functions; or (ii) within 270 days of such disposition if Borrowers have entered into a Eurodollar binding commitment to make such reinvestment in replacement assets performing the same or similar functions within the 180 day period referred to in clause (i) provided that, (A) to the extent such disposition relates to ABL Priority Collateral, such ABL Priority Collateral Proceeds shall be applied (i) first, to Revolver Debt until paid in full and (ii) second, to the Term Loans until paid in full and (B) to the extent such disposition relates to Term Priority Collateral, such Term Priority Collateral Proceeds shall be applied (i) first, to the Term Loan is prepaid on until paid in full and (ii) second, to the Revolver Debt until paid in full;
(iii) Concurrently with the receipt by any Obligor of any proceeds of any insurance or condemnation award in excess of $2,500,000, the recipient of such proceeds shall prepay the Term Loan in an amount equal to such proceeds; provided that so long as no Event of Default shall have occurred and be continuing, the recipient of any such proceeds may reinvest such proceeds (only to the extent that the aggregate amount of such proceeds from any single casualty or condemnation award do not exceed $7,000,000) within (i) 180 days of such disposition in replacement assets performing the same or similar functions or (ii) within 270 days of such disposition if Borrowers have entered into a binding commitment to make such reinvestment in replacement assets performing the same or similar functions within the 180 day period referred to in clause (i); provided that, (A) to the extent such proceeds of insurance or condemnation award relates to ABL Priority Collateral, such ABL Priority Collateral Proceeds shall be applied (i) first, to Revolver Debt until paid in full and (ii) second, to the Term Loans until paid in full and (B) to the extent such proceeds of insurance or condemnation award relates to Term Priority Collateral, such Term Priority Collateral Proceeds shall be applied (i) first, to the Term Loan until paid in full and (ii) second, to the Revolver Debt until paid in full;
(iv) Concurrently with any issuance of Equity Interests (including issuances of Equity Interests constituting Equity Cure Contributions, but excluding issuances of Equity Interests constituting "Equity Cure Contributions" (as defined in the Revolver Loan Agreement)) by any Obligor, Borrowers shall prepay the Term Loan in an amount equal to the net proceeds of such issuance;
(v) Concurrently with any issuance of Debt (other than Debt permitted by Section 9.2.1) by any Obligor, Borrowers shall prepay the last day Term Loan in an amount equal to the net proceeds of such issuance;
(vi) [reserved];
(vii) Concurrently with the Interest Period applicable theretoreceipt of any Extraordinary Receipts by any Obligor, Borrowers shall prepay Term Loans in an amount equal to such proceeds; provided that to the Borrower extent such proceeds relates to ABL Priority Collateral, such ABL Priority Collateral Proceeds shall also pay any amounts owing pursuant be applied (i) first, to Section 2Revolver Debt until paid in full and (ii) second, to the Term Loans until paid in full.
Appears in 1 contract
Sources: Financing Agreement (Select Interior Concepts, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning Commencing with the fiscal quarter year of the Borrower ending March December 31, 20092022, there shall be Excess Cash Flowwithin five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, on if the relevant Borrower’s Excess Cash Flow Application Dateis greater than $5,000,000, apply cause to be prepaid an aggregate principal amount of Term Loans (such aggregate amount, the “Excess Cash Flow Prepayment Amount”) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of $5,000,000, if any, for the fiscal year covered by such financial statements (commencing with the fiscal year ending December 31, 2022), minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buybacks made by the Borrower or any Restricted Subsidiary at a discount to par, with credit given to the cash amount actually paid in respect thereof) of Term Loans and any Incremental Term Loans during such fiscal year and, at the Borrower’s election, all such voluntary prepayments made after the end of such fiscal year but prior to the time that the prepayment required by this clause (b)(i) is made, in each case to the extent such prepayments are not funded with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) or any Cure Amount, (2) all voluntary prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year and, at the Borrower’s election, all such voluntary prepayments made after the end of such fiscal year but prior to the time that the prepayment required by this clause (b)(i) is made, to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments and to the extent such prepayments are not funded with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) or any Cure Amount, (3) without duplication of amounts deducted pursuant to clause (5) below in prior fiscal years, the amount of Capital Expenditures and acquisitions made in cash during such period (and, at the Borrower’s election, all such Capital Expenditures and acquisitions made after the end of such period but prior to the time that the prepayment required by this clause (b)(i) is made), except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of an incurrence or issuance of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans), (4) without duplication of amounts deducted pursuant to clause (5) below in prior periods, the amount of Investments and acquisitions made during such period (and, at the Borrower’s election, all such Investments and acquisitions made after the end of such period but prior to the time that the prepayment required by this clause (b)(i) is made) pursuant to Section 7.02 (other than Section 7.02(a) and (d)) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) and (5) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures, Investments or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period except to the extent intended to be financed with the proceeds of an incurrence or issuance of other long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) (provided that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures, Investments or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters) (any transaction referred to in this clause (B) made following the fiscal year end but prior to the making of such prepayment under this clause (b)(i), an “After Year-End Transaction”); provided that (x) the ECF Percentage shall be reduced to 25% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.00:1.00 and greater than or equal to 2.50:1.00 and (y) the ECF Percentage shall be reduced to 0% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 2.50:1.00; provided, further, to the extent so elected by the Borrower, following the consummation of any After Year-End Transaction, (i) the First Lien Senior Secured Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Transaction as if such transaction was consummated during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date determined by reference to such recalculated First Lien Senior Secured Leverage Ratio and (an “ii) such After Year-End Transaction shall not be applied to the calculation of the First Lien Senior Secured Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow Application Date”) no later than 45 days after each prepayment; provided, further, that for any fiscal quarter end for year, if the first three fiscal quarters and 90 days in the case sum of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of amounts that reduce Excess Cash Flow, Flow under clause (B) of this clause (b)(i) is in excess of the amount of Loans required the Excess Cash Flow Prepayment Amount for such fiscal year, such excess amount shall, at the Borrower’s sole option, be carried over to be repaid pursuant to this clause (b) the next succeeding fiscal year and shall reduce any Excess Cash Flow Prepayment Amount for any such succeeding fiscal quarter shall be reduced year on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarterbasis.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Sources: Credit Agreement (Holley Inc.)
Mandatory Prepayments. (a) Upon If any Indebtedness shall be incurred or issued by any Group Member after the consummation of the Classmates IPOClosing Date (other than Excluded Indebtedness), an amount equal to: (i) the greater of (x) 50to 100% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO such incurrence or issuance toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c4.2(e).
(b) If, for If on any date any Group Member shall receive Net Cash Proceeds in excess of $3,000,000 in any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31year from any Asset Sale or Recovery Event then, 2009, there unless a Reinvestment Notice shall be Excess delivered in respect thereof, an amount equal to 100% of such Net Cash FlowProceeds shall be applied on such date toward the prepayment of the Term Loans as set forth in Section 4.2(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 toward the prepayment of the Term Loans as set forth in Section 4.2(e).
(c) The Borrower shall, on the relevant each Excess Cash Flow Application Date, apply 50% the ECF Percentage of the excess, if any, of (i) Excess Cash Flow for the related Excess Cash Flow Payment Period minus (ii) Voluntary Prepayments made during such Excess Cash Flow Payment Period or, at the option of the Borrower, on or prior such Excess Cash Flow Application Date, toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c4.2(e). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 ten (10) days after each fiscal quarter end the date on which the financial statements referred to in Section 7.1(a) for the first three fiscal quarters and 90 days in the case year of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans Borrower with respect to which such prepayment is made are required to be repaid delivered to the Lenders.
(d) [reserved].
(e) Unless any Increase Term Joinder or any other amendment governing any Incremental Term Loans, any Replacement Term Loans and/or any term loans provided by an Extending Term Lender provides that Incremental Term Loans, Replacement Term Loans or such term loans provided by an Extending Term Lender, as applicable, shall participate on a less than pro rata basis with the Initial Term Loans in connection with prepayments pursuant to this clause (b) for any fiscal quarter Section 4.2, each prepayment of Term Loans pursuant to this Section 4.2 shall be reduced applied on a dollar for dollar pro rata basis by between the Initial Term Loans and each Additional Term Facility then outstanding based on the aggregate principal amount of optional prepayments the Term Loans under each such Term Facility then outstanding (provided, that any prepayment of Term Loans made pursuant with the net proceeds of an Incremental Term Facility or Replacement Term Loans incurred for the purpose of refinancing or replacing such Term Loans shall be applied to Section 2.5 during such fiscal quarter.
(c) Amounts the Term Loans of the applicable Term Facility being refinanced or replaced). With respect to Term Loans under any Term Facility, amounts to be applied in connection with prepayments made pursuant to this Section 2.6 4.2 shall be appliedapplied against the remaining scheduled installments of principal due in respect of the Term Loans of such Term Facility as directed by the Borrower (or, in the absence of direction from the Borrower, to the prepayment remaining scheduled amortization payments in respect of the Term Loans of such Term Facility in direct order of maturity), and each such prepayment shall be paid to the Term Lenders of such class in accordance with Section 2.12(b) (unless otherwise agreed 4.8 and first, to Base Rate Loans and, second, to Eurodollar Loans in writing a manner that minimizes the amount of any payments required to be made by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed Borrower pursuant to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined AmountsSection 4.11. Each prepayment of the Term Loans under this Section 2.6 4.2 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(f) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant Sections 4.2(b) or (c), to decline all (but not a portion) of its share of such prepayment (such declined amounts, the “Declined Proceeds”), in which case such Declined Proceeds may be retained by the Borrower; provided, that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 4.2(a) above to the extent that such prepayment is made with the Net Cash Proceeds of any Permitted Refinancing incurred to refinance all or a portion of the Term Loans. If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its share of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s share of the total amount of such mandatory prepayment of Term Loans.
(g) Notwithstanding the foregoing, to the extent that (and for so long as) the repatriation to the Borrower as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Sections 4.2(b) or (c) above that are attributable to any Foreign Subsidiary are (i) prohibited or delayed by applicable local Requirements of Law from being repatriated to the jurisdiction of organization of the Borrower or (ii) would result in a material and adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the calculation of Net Cash Proceeds and/or Excess Cash Flow, as applicable, shall be reduced by such Restricted Amount; provided, that if a Eurodollar Loan once such repatriation of any such affected Net Cash Proceeds and/or Excess Cash Flow, as applicable, is prepaid on any day other than (x) permitted under the last day applicable local Requirements of the Interest Period applicable theretoLaw and/or (y) would no longer result in such material and adverse Tax liability, the Borrower Group Members shall also pay any amounts owing pursuant be treated as having received Net Cash Proceeds and/or Excess Cash Flow, as applicable, equal to Section 2the amount of such reduction.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than five Business Days after the date on which the financial statements with respect to each Fiscal Year of the Borrower Agent are required to be delivered pursuant to Section 5.01(c), commencing with the Fiscal Year ending on or about December 31, 2015, the Borrowers shall prepay outstanding Term Loans in an aggregate principal amount equal to (A) 50.0% of Excess Cash Flow for the Fiscal Year then ended, minus (B) at the option of the Borrowers, (x) (1) the aggregate principal amount of any Term Loans prepaid pursuant to Section 2.11(a) and (2) the aggregate principal amount of any Incremental Equivalent Debt and Refinancing Equivalent Debt (in each case that is secured by the Collateral on a pari passu basis, and pari passu in right of payment, with the Obligations under Term Loans and Revolving Credit Loans secured on a first lien basis) prepaid pursuant to the terms of the instrument governing or evidencing such Indebtedness (and limited to the discounted amount actually prepaid in the case of any such prepayment at less than the par amount thereof) and (y) the aggregate principal amount of any loans or incremental loans under the ABL Facility prepaid pursuant to Section 2.11 of the ABL Credit Agreement (in the case of any such revolving loans prepaid as described under clauses (x) or (y), to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments described under clauses (x) or (y), to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrowers or their Subsidiaries); provided that with respect to any prepayment pursuant to this Section 2.11(b)(i) to be made on or after January 1, 2017, (1) such percentage of Excess Cash Flow shall be reduced to 25.0% of Excess Cash Flow if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 3.50 to 1.00, but greater than 2.50 to 1.00 and (2) such prepayment shall not be required if the First Lien Leverage Ratio calculated on a Pro Forma Basis as of the last day of such Fiscal Year (but without giving effect to the payment required hereby) shall be less than or equal to 2.50 to 1.00.
(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, in each case, in excess of (x) 50% $15,000,000 in a single transaction or series of the net cash proceeds received by the Borrower in connection with the Classmates IPO related transactions and (y) $30,000,000 25,000,000 in any Fiscal Year, the Borrowers shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such thresholds to prepay outstanding Term Loans; provided that if prior to the date any such prepayment is required to be made, the Borrower Agent notifies the Administrative Agent of its intention to reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds in assets used or useful in the business of the Borrower Agent or any of its Subsidiaries (other than current assets, except to the extent acquired in connection with a Permitted Acquisition or another Investment in another Person under Section 6.07), 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 such Net Proceeds or Net Insurance/Condemnation Proceeds to the extent such Net Proceeds or Net Insurance/Condemnation Proceeds are reinvested within 12 months following receipt thereof, or if the Borrower Agent or any of its Subsidiaries has entered into a binding contract to so reinvest such Net Proceeds or Net Insurance/Condemnation Proceeds during such 12-month period and such Net Proceeds or Net Insurance/Condemnation Proceeds are so reinvested within six months after the expiration of such 12-month period; provided, however, that if any Net Proceeds or Net Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay the Term Loans with the Net Proceeds or Net Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if at the time that any such prepayment would be required hereunder, either Borrower is required to offer to repurchase any other Indebtedness secured on a pari passu basis (or any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with Net Proceeds (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, the “Other Applicable Indebtedness”), then such Borrower may apply such Net Proceeds or Net Insurance/Condemnation Proceeds on a pro rata basis to the prepayment of the Term Loans and to the repurchase or prepayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided that the portion of such Net Proceeds or Net Insurance/Condemnation Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Proceeds or Net Insurance/Condemnation Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds or Net Insurance/Condemnation Proceeds shall be allocated to the Term Loans in accordance with the terms hereof), and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof. Notwithstanding anything to the contrary contained above in this Section 2.11(b)(ii), (I) if, as a result of any Prepayment Asset Sale or any event giving rise to Net Insurance/Condemnation Proceeds, either Borrower or any of its Subsidiaries would be required to make an “offer to purchase” any Indebtedness in excess of the Threshold Amount (other than Other Applicable Indebtedness) pursuant to the terms thereof with (or on account of) any Net Proceeds or Net Insurance/Condemnation Proceeds to be reinvested as provided above prior to the expiry of the applicable reinvestment period above, the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to prepay Term Loans as otherwise required above in this Section 2.11(b)(ii) on the day immediately preceding the date of such required “offer to purchase” (without regard to the first proviso in the immediately preceding sentence) and (II) if, as a result of any Prepayment Asset Sale or any event giving rise to Net Insurance/Condemnation Proceeds, either Borrower or any of its Subsidiaries would be required to make an “offer to purchase” any Other Applicable Indebtedness pursuant to the terms of the documentation governing such Other Applicable Indebtedness with (or on account of) any Net Proceeds or Net Insurance/Condemnation Proceeds to be reinvested as provided above prior to the expiry of the applicable reinvestment period above, the Borrowers shall apply an amount equal to the Net Proceeds or Net Insurance/Condemnation Proceeds therefrom to repay or repurchase, as applicable, on a ratable basis, the Other Applicable Indebtedness and the Term Loans on the date of the Classmates IPO toward consummation of any such “offer to purchase”.
(iii) In the prepayment event that the Borrower Agent or any of its Subsidiaries (A) shall receive Net Proceeds from the issuance or incurrence of Indebtedness of the Borrower Agent or any of its Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, except to the extent constituting Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the requirements of Section 9.02(c)), the Borrowers shall, substantially simultaneously with (and other in any event not later than the Business Day immediately following) the receipt of such Net Proceeds by such Borrower or such Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay outstanding Term Loans or (B) incurs or issues any Refinancing Loans (or Refinancing Equivalent Debt) resulting in Net Proceeds (as opposed to such Refinancing Loans or Refinancing Equivalent Debt arising out of an exchange of existing Term Loans for such Refinancing Loans or Refinancing Equivalent Debt), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrowers of such Net Proceeds.
(iv) Notwithstanding any provision under this Section 2.11(b) to the contrary, (A) any amounts that would otherwise be required to be paid by the Borrowers pursuant to Section 2.11(b)(i), (ii) or (iii) above shall not be required to be so prepaid to the extent any such Excess Cash Flow is generated by a Foreign Subsidiary, such Prepayment Asset Sale is consummated by a Foreign Subsidiary, such Net Insurance/Condemnation Proceeds are received by a Foreign Subsidiary or such Indebtedness is incurred by a Foreign Subsidiary, as set forth the case may be, for so long as the repatriation to the United States of any such amounts would be prohibited under any Requirement of Law (the Borrower Agent hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions commercially reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow is permitted under the applicable Requirement of Law, such repatriation will be immediately effected and such repatriated Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow 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 2.6(c2.11(b) to the extent provided herein; and (B) if the Borrowers and the Subsidiaries determine in good faith that the repatriation to the United States of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(i), (ii) or (iii) above would result in materially adverse tax consequences, 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 Borrower Agent, the amount the Borrowers shall be required to mandatorily prepay pursuant to Section 2.11(b)(i), (ii) or (iii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the United States such Restricted Amount without incurring such materially adverse tax liability; provided that, in the case of this clause (B), on or before the date on which any Net Proceeds or Net Insurance/Condemnation Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.11(b), (x) the Borrowers shall apply an amount equal to such Net Proceeds or Net Insurance/Condemnation Proceeds to such reinvestments or prepayments as if such Net Proceeds or Net Insurance/Condemnation Proceeds had been received by the Borrower Agent rather than such Foreign Subsidiary, less the amount of additional taxes that would have been payable or reserved against it if such Net Proceeds or Net Insurance/Condemnation Proceeds had been repatriated to the United States by such Foreign Subsidiary or (y) such Net Proceeds or Net Insurance/Condemnation Proceeds are applied to the repayment of Indebtedness of a Foreign Subsidiary; provided, further, that to the extent that the repatriation of any Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow from such Foreign Subsidiary would no longer have a materially adverse tax consequence, an amount equal to the Net Proceeds, Net Insurance/Condemnation Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clauses (x) and (y), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv)).
(bv) IfEach Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrowers pursuant to this 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 Borrowers and shall be added to the calculation of the Available Amount; provided that, for the avoidance of doubt, no Lender may reject any fiscal quarter prepayment made under Section 2.11(b)(iii) above. If a Lender fails to deliver a notice of Borrower beginning with election declining receipt of its Applicable Percentage of such mandatory prepayment to the fiscal quarter ending March 31Administrative Agent within the time frame specified above, 2009, there any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vi) All accepted prepayments under this Section 2.11(b) shall be Excess Cash Flow, applied against the remaining scheduled installments of principal due in respect of the Term Loans as directed by the Borrower shallAgent (or, on in the relevant Excess Cash Flow Application Dateabsence of direction from the Borrower Agent, apply 50% of such Excess Cash Flow toward to the prepayment remaining scheduled amortization payments in respect of the Term Loans in direct order of maturity), and other amounts as set forth in Section 2.6(c). Each each such prepayment shall be made on paid to the Lenders in accordance with their respective Applicable Percentage.
(vii) The Borrower Agent shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.11(b), a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case certificate signed by a Responsible Officer of the fourth quarter Borrower Agent setting forth in reasonable detail the calculation of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required such prepayment. Each such certificate shall specify the Borrowings being prepaid and the principal amount of each Borrowing (or portion thereof) to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amountsprepaid. Each prepayment of the Loans under Section 2.6 Prepayments shall be accompanied by accrued interest to the date as required by Section 2.13. All prepayments of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower Borrowings under this Section 2.11(b) shall also pay any amounts owing pursuant be subject to Section 22.16, but shall otherwise be without premium or penalty (unless required by Section 2.12(c)).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Party City Holdco Inc.)
Mandatory Prepayments. (ai) Upon No later than the consummation tenth (10th) Business Day after the date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2020, the Borrower shall prepay the outstanding principal amount of Subject Loans in an aggregate principal amount equal to: to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, the sum of (1) the aggregate principal amount of any other Indebtedness that is secured on a pari passu basis with the Secured Obligations that the Borrower voluntarily repays or repurchases during such period and prior to such date, (2) the aggregate principal amount of any Term Loans and/or Revolving Loans prepaid pursuant to Section 2.11(a) during such period and prior to such date (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment), (3) the aggregate principal amount of any Second Lien Term Loans (or any other Indebtedness constituting Second Lien Obligations (as defined in the Closing Date Intercreditor Agreement) optionally prepaid pursuant to Section 2.11(a) of the Second Lien Credit Agreement (or otherwise optionally prepaid, redeemed or repurchased pursuant to any equivalent provision under any other document governing any such other Indebtedness constituting Second Lien Obligations (as defined in the Closing Date Intercreditor Agreement))) during such period and prior to such date and (4) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment to or purchase by Holdings, the Borrower or any Restricted Subsidiary in accordance with Section 9.05(g) of this Agreement in connection with any Dutch Auction during such period and prior to such date and, in the case of this clause (4), based upon the principal amount of Indebtedeness subject to the relevant assignment or purchase, minus (C) at the option of the Borrower, the sum of (1) cash payments by the Borrower and its Restricted Subsidiaries during such Excess Cash Flow Period in respect of purchase price holdbacks, earn out obligations, or long-term liabilities of the Borrower and its Restricted Subsidiaries other than Indebtedness to the extent such payments are not expensed during such Excess Cash Flow Period or are not deducted in arriving at such Consolidated Net Income to the extent financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries, (2) the amount of Investments (other than Investments in Holdings, the Borrower or any Restricted Subsidiary and other than Investments in Cash or Cash Equivalents) and acquisitions not prohibited by this Agreement made during such Excess Cash Flow Period, to the extent that such Investments and acquisitions were financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries, (3) the amount of Restricted Payments (other than Restricted Investments) paid in cash during such Excess Cash Flow Period not prohibited by this Agreement (other than Restricted Payments made (i) to the Borrower or any Restricted Subsidiary or (ii) pursuant to Section 6.04(a)(iii)(A)), to the extent that such Restricted Payments were financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries, (4) the amount of Capital Expenditures (including acquisitions of intellectual property) made in Cash or accrued during such Excess Cash Flow Period, to the extent that such Capital Expenditures were financed with internally generated cash flow of the Borrower or its Restricted Subsidiaries and (5) without duplication of amounts deducted from Excess Cash Flow in prior periods, (i) the greater aggregate consideration required to be paid in Cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contract commitments, letters of intent or purchase orders (the “Contract Consideration”), in each case, entered into prior to or during such Excess Cash Flow Period and (ii) to the extent set forth in a certificate of a Responsible Officer delivered to the Administrative Agent at or before the time the Compliance Certificate for the period ending simultaneously with such Test Period is required to be delivered pursuant to Section 5.01(c), the aggregate amount of cash that is reasonably expected to be paid in respect of planned cash expenditures by the Borrower or any of its Restricted Subsidiaries (the “Planned Expenditures”), in the case of each of clauses (i) and (ii), relating to Permitted Acquisitions, other Investments (other than Investments in Cash Equivalents) or Capital Expenditures (including purchases of intellectual property) to be consummated or made within the succeeding 12-month period; provided, that to the extent the aggregate amount of internally generated cash actually utilized to finance such Permitted Acquisitions, Investments or Capital Expenditures during such succeeding 12-month period is less than the Contract Consideration or Planned Expenditures, the amount of such shortfall shall be added to the calculation of Excess Cash Flow at the end of such Test Period, in each case, (I) to the extent such payments are made during such Fiscal Year or after the end of such Fiscal Year and prior to the date any payment in respect of Excess Cash Flow would be due under this Section 2.11(b)(i), (II) excluding any such optional prepayment made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year and (III) to the extent that the relevant prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries; provided that no prepayment under this Section 2.11(b)(i) shall be required unless and to the extent the amount thereof would exceed $20,000,000 after giving effect to the calculations and adjustments described in clauses (A) and (B) above.
(ii) No later than the tenth (10th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, the Borrower shall apply an amount equal to the Required Asset Sale Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of the threshold specified in clause (B) of this Section 2.11(b)(ii) (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Subject Loans; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds (other than Subject Proceeds with respect to any Disposition consummated pursuant to Section 6.07(h)(B)) in the business of the Borrower or any of its subsidiaries (including any acquisition or other Investment permitted hereunder but not in Cash or Cash Equivalents), 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) 50% the Subject Proceeds are so reinvested within 540 days following receipt thereof, or (y) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 540-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 540-day period; it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the net cash proceeds applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso) and (B) the obligation to make a prepayment under this Section 2.11(b)(ii) shall only apply if and to the extent the aggregate amount of (I) Net Proceeds resulting from Prepayment Asset Sales and (II) Net Insurance/Condemnation Proceeds, in each case received by the Borrower in connection with the Classmates IPO and/or any Restricted Subsidiaries (x) for any such single transaction (or related transactions) exceeds $10,000,000 and (y) in any Fiscal Year exceeds $30,000,000 shall 20,000,000 (with only the amount of Net Proceeds exceeding such amount for any single transaction (or related transactions) or in such Fiscal Year to be applied on the date of the Classmates IPO toward the to make a prepayment of the Loans and other amounts as set forth in under this Section 2.6(c2.11(b)(ii)).
(biii) If, for any fiscal quarter of Borrower beginning with In the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, event that the Borrower shallor any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, on except to the extent the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment Indebtedness constitutes (A) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
6.01(p), (cB) Amounts Incremental Loans incurred to be applied in connection with prepayments made refinance all or a portion of the Term Loans pursuant to Section 2.6 shall be applied2.22, (C) Replacement Term Loans incurred to refinance all or any portion of the prepayment 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 the Loans in accordance with the requirements of Section 2.12(b6.01(z)), the Borrower or the relevant Restricted Subsidiary 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 Person, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Term Loans in accordance with clause (iv) 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 Sections 2.11(b)(i) or (ii) above to the extent that the relevant affected Excess Cash Flow is attributable to any Foreign Subsidiary or the relevant Subject Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be prohibited, delayed or restricted under any Requirement of 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, member of management or consultant of such Foreign Subsidiary (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions available under applicable Requirements of Law to permit such repatriation or to remove such prohibition); it being understood and agreed that if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 540 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, an amount equal to the relevant Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly applied (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts) 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)),
(B) the Borrower 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 Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited, delayed or restricted under the Organizational Documents governing such joint venture; it being understood and agreed that if the relevant prohibition ceases to exist within the 540-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, 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 determines in good faith that the repatriation to the Borrower as a distribution 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 adverse Tax liability (including any withholding Tax) (unless otherwise agreed such amount, a “Restricted Amount”), the amount that the Borrower shall be required to in writing mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by and among Lenders)the Restricted Amount; (provided that any to the extent that the repatriation of the relevant Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 540-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above (net of additional Taxes that would be payable or reserved against as a result of repatriating such amounts),
(v) Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline any all (but not a portion) of its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case the such Declined Amount Proceeds shall be distributed applied to any mandatory prepayment, repurchase or redemption required under the Second Lien Credit Agreement or the documentation governing any other Indebtedness in excess of the Threshold Amount; provided that (A) in the event that any lender under the Second Lien Credit Agreement (or such other Indebtedness) elects to decline receipt of such Declined Proceeds in accordance with the terms of the Second Lien Credit Agreement (or the documentation governing such other Indebtedness), the remaining amount thereof may be retained by the Borrower and (B) that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the prepaymentextent that such prepayment is made with the Net Proceeds of (w) Refinancing Indebtedness incurred to refinance all or a portion of the Term Loans pursuant to Section 6.01(p), on (x) Incremental Loans incurred to refinance all or a pro rata basisportion 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 finance all or a portion of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment in accordance with the requirements of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 26.
Appears in 1 contract
Sources: First Amendment to the First Lien Credit Agreement (Waystar Holding Corp.)
Mandatory Prepayments. (a) Upon Not later than the consummation third Business Day following the receipt of Net Cash Proceeds in respect of any Asset Sale or Recovery Event, the Classmates IPO, an amount equal to: (i) the greater of (x) 50Borrower shall apply 100% of the net cash proceeds Net Cash Proceeds received by the Borrower with respect thereto to prepay outstanding Term Loans in connection accordance with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c2.13(e).
(b) If, for any fiscal quarter of Borrower beginning Commencing with the first fiscal quarter ending March 31year commencing after the Closing Date, 2009no later than the fifth Business Day following the date on which the financial statements of the Borrower with respect to each such fiscal year are required to be delivered pursuant to Section 5.04(a), there the Borrower shall be prepay outstanding Term Loans in accordance with Section 2.13(e) in an aggregate principal amount equal to (x) (i) the Excess Cash FlowFlow Percentage for such fiscal year then ended multiplied by (ii) the Excess Cash Flow for such fiscal year then ended minus (y) voluntary prepayments of Term Loans during such fiscal year (other than any such voluntary prepayments that reduce scheduled amortization during the applicable fiscal year) (it being agreed that purchases pursuant to a Dutch Auction or any purchase or acquisition by any Affiliated Lender, even if subsequently cancelled, shall not be a voluntary prepayment) but only to the extent that such prepayments are not funded with Indebtedness and such prepayments do not occur in connection with a refinancing of all or any portion of such Indebtedness.
(c) In the event that any Loan Party or any subsidiary of a Loan Party shall receive Net Cash Proceeds from the issuance or incurrence of Indebtedness for money borrowed of any Loan Party or any subsidiary of a Loan Party (other than any cash proceeds from the issuance of Indebtedness for money borrowed permitted pursuant to Section 6.01), the Borrower shall, on substantially simultaneously with (and in any event not later than the relevant Excess third Business Day next following) the receipt of such Net Cash Flow Application DateProceeds by such Loan Party or such subsidiary, apply 50an amount equal to 100% of such Excess Net Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required Proceeds to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the prepay outstanding Term Loans in accordance with Section 2.12(b2.13(e).
(d) In the event that Holdings or the Borrower receives any Cure Amount, the Borrower shall, substantially simultaneously with (unless otherwise and in any event within one Business Day following) the receipt of such Cure Amount by Holdings or the Borrower, apply an amount equal to 100% of such Cure Amount to prepay outstanding Term Loans in accordance with Section 2.13(e).
(e) Unless any applicable Incremental Term Loan Assumption Agreement or Extended Term Loan Agreement specifies that the applicable Class (or Classes) of Term Loans participates on a less than pro rata basis in any mandatory prepayments hereunder (it being understood and agreed to in writing by and among Lenders); (provided that no such agreement may specify that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, Class of Term Loans participates on greater than a pro rata basis), in each case solely with respect to the Closing Date Term Loans, each mandatory prepayment of outstanding Term Loans under this Agreement shall be allocated pro rata among each Class of the Term Loans held then outstanding and, with respect to each Class, applied, first, against any scheduled amortization payments that would otherwise be due in the succeeding 12-month period, in direct order of maturity, and, second, against the remaining scheduled amortization payments due in respect thereof pro rata; provided that, subject to the foregoing, mandatory prepayments of outstanding Term Loans shall be applied, first, against ABR Loans, and, second, against LIBO Rate Loans.
(f) 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 Lenders that have elected a Financial Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment and (ii) to accept the extent practicable, at least three days prior written notice of such Declined Amountsprepayment. Each notice of prepayment shall specify the prepayment date, the Type of each Loan being prepaid and the Loans principal amount of each Loan (or portion thereof) to be prepaid. All prepayments of Borrowings under this Section 2.6 2.13 shall be subject to Sections 2.16 and 2.25, but shall otherwise be 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 such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2payment.
Appears in 1 contract
Sources: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPOIf any Permitted Convertible Indebtedness shall be incurred, an amount equal to: (i) the greater of (x) to 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 Net Cash Proceeds thereof shall be applied on the date of the Classmates IPO toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.12(g) on or prior to the date that is two (2) Business Days after the date of funding of such Permitted Convertible Indebtedness.
(b) If any Indebtedness shall be incurred by any Group Member (excluding any Indebtedness incurred in accordance with Section 7.2 (other than Credit Agreement Refinancing Indebtedness)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of incurrence toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g).
(bc) If on any date any Group Member shall receive Net Cash Proceeds from any Specified Asset Sale or from any Recovery Event unless a Reinvestment Notice shall be delivered to the Administrative Agent on or prior to the fifth (5th) Business Day after receipt thereof, 100% of such Net Cash Proceeds shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g) on or prior to the sixth (6th) Business Day after such Group Member’s receipt of such Net Cash Proceeds; provided that (i) 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 and other amounts as set forth in Section 2.12(g) and (ii) with respect to Net Cash Proceeds from any Specified Asset Sale, (A) no Reinvestment Notice shall be delivered prior to the Delayed Draw Termination Date and (B) to the extent that the Consolidated Net Leverage Ratio exceeds 4.50 to 1.00, calculated on a Pro Forma Basis as of the end of the most recent Test Period, then the aggregate amount of the Reinvestment Deferred Amount specified in such Reinvestment Notice (when taken together with all prior Net Cash Proceeds for which a Reinvestment Notice was delivered, minus all Reinvestment Prepayment Amounts previously paid to the Administrative Agent pursuant to clause (i) of this proviso) shall not exceed $10,000,000.
(d) If, for any fiscal quarter year of Borrower beginning the Borrower, commencing with the fiscal quarter year ending March December 31, 20092025, there shall be positive Excess Cash FlowFlow for such fiscal year, the Borrower shall, on or prior to the relevant Excess Cash Flow Application Date, apply the difference of (x) 50% of such Excess Cash Flow minus (y) the aggregate amount of any voluntary prepayments (including Discounted Prepayments made pursuant to Section 2.29 and assignments to the Borrower or any Subsidiary made pursuant to Section 10.6(h), with the amount of such prepayment being equal to the amount actually paid by the Borrower (or any Subsidiary, as applicable)) of the Term Loans made during such fiscal year (in each case, to the extent such payment is not financed with the proceeds of long-term Indebtedness for borrowed money (other than revolving facilities) or the proceeds of an equity issuance) (such difference, the “ECF Prepayment Amount”) toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.12(g); provided that no prepayment shall be required with respect to such fiscal year under this Section 2.12(d) unless the ECF Prepayment Amount exceeds the greater of (i) $2,000,000 and (ii) 5% of Consolidated Adjusted EBITDA as of the most recently ended Test Period (and only the amount in excess of such threshold shall be required to be used to prepay the Term Loans under this Section 2.12(d). Each such prepayment shall be made on a or prior to the date that is three (an 3) 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 to be made are required to be delivered to the Lenders, and (ii) the date such financial statements are actually delivered (such date with respect to the applicable fiscal year, the “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter).
(ce) Upon the Borrower’s receipt of any Specified Equity Contribution, 100% of such Specified Equity Contribution shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g) within two (2) Business Days after receipt thereof.
(f) If on any date any Group Member shall receive any Extraordinary Receipts, 100% of the net cash proceeds of such Extraordinary Receipts shall be applied toward the prepayment of the Term Loans and other amounts as set forth in Section 2.12(g) within two (2) Business Days after receipt thereof.
(g) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 2.12 shall be applied, applied to the prepayment of scheduled installments due in respect of the Term Loans ratably for each upcoming scheduled installment payment of Term Loans required under Section 2.3 (excluding the final payment at the Maturity Date) until each such scheduled installment is paid in accordance full and, thereafter, to the final payment due in respect of the Term Loans on the Maturity Date, and, in each case, to the extent accrued shall be paid together with Section 2.12(b) (unless otherwise agreed accrued interest to in writing by and among Lenders)the date of such prepayment on the amount prepaid; (provided that any Lender may decline any such prepayment made pursuant to this Section 2.12 (other than any prepayment made with the proceeds of Credit Agreement Refinancing Indebtedness) (the aggregate amount of all such prepayments declined in connection with any particular prepayment, collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed retained by the Borrower and may be used for any purpose not prohibited by this Agreement. The Borrower shall deliver to the prepayment, on a pro rata basis, Administrative Agent notice of the Loans held by Lenders that have elected to accept such Declined Amounts. Each each prepayment of Term Loans pursuant to this Section 2.12 to the Loans under Section 2.6 shall be accompanied by accrued interest Administrative Agent not less than three (3) 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 and (ii) the aggregate amount of such prepayment.
(h) The Borrower shall deliver to the Administrative Agent, at the time of each prepayment on required under this Section 2.12, a certificate signed by a Responsible Officer setting forth in reasonable detail the calculation of the amount prepaid; providedof such prepayment.
(i) Mandatory prepayments made pursuant to Section 2.12(a), Section 2.12(b) and (solely with respect to Specified Asset Sales, and solely to the extent provided in Section 2.9(d)) Section 2.12(c) shall be subject to the Prepayment Premium set forth in Section 2.9(d).
(j) Notwithstanding any provisions of this Section 2.12 to the contrary, to the extent the Borrower determines, acting in good faith, that if a Eurodollar Loan is any repatriation or distribution (or deemed repatriation or deemed distribution for tax purposes) to the Borrower of Net Cash Proceeds, Excess Cash Flow, and Extraordinary Receipts described in this Section 2.12 that are attributable to any Subsidiary would reasonably be expected to result in material adverse Tax consequences to any Group Member (as determined by the Borrower in good faith and in consultation with the Administrative Agent), or would be prohibited or restricted by applicable Requirements of Law, or applicable Operating Documents or material agreements of such Subsidiary, the applicable Net Cash Proceeds, Excess Cash Flow, or Extraordinary Receipts, as applicable, shall not be required to be so repatriated or distributed and the relevant amounts shall not be required to be prepaid on in accordance with this Section 2.12. To the extent that the relevant material adverse Tax consequences, restrictions imposed by Requirements of Law or restrictions set forth in the applicable Operating Documents or material agreements, in each case, would no longer be applicable at any time in the twelve (12) month period following the day other than that the last day of the Interest Period applicable theretorelevant amounts would otherwise be required to be prepaid pursuant to this Section 2.12, the Borrower shall also pay any cause such amounts owing to be prepaid as and to the extent otherwise required pursuant to this Section 22.12. The Borrower will use commercially reasonable efforts to avoid or mitigate any material adverse Tax consequences, restrictions imposed by Requirements of Law and restrictions set forth in the applicable Operating Documents or material agreements, in each case, that would otherwise limit an obligation of the Borrower to make a mandatory prepayment in accordance with the terms of this Section 2.12.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on December 30, 2018, the Borrower shall prepay the outstanding principal amount of Initial Loans and Additional Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Subsidiaries for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) 50% the aggregate principal amount of any Term Loans and/or Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date and (y) the net amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (z), based upon the actual amount of cash proceeds received by the Borrower paid in connection with the Classmates IPO relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (yother than revolving Indebtedness) $30,000,000 of the Borrower or its Subsidiaries); provided that no prepayment under this Section 2.11(b) shall be applied required unless and to the extent that the amount thereof exceeds $1,000,000; provided, further, that if at the time that any such prepayment would be required, the Borrower (or any Subsidiary of the Borrower) is also required to prepay any Indebtedness that is secured on a pari passu basis with any Secured Obligation that is secured on a first lien basis pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the date basis of the Classmates IPO toward aggregate outstanding principal amount of the Loans and the relevant Other Applicable Indebtedness at such time; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the prepayment of the relevant Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of 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 Term Loans in accordance with the terms hereof.
(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, in each case, in excess of $3,500,000 in any Fiscal Year, the Borrower shall apply an amount equal to 100% of the 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 Initial Loans and Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that (A) if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in the business of the Borrower and/or any subsidiary (to the extent such Investment is permitted or not restricted under Section 6.06) (other amounts than in Cash or Cash Equivalents), then so long as no Event of Default exists, 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 365 days following receipt thereof, or (y) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 365-day period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 365-day 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 (without regard to the immediately preceding proviso) and (B) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Subsidiaries is required to repay or repurchase any Other Applicable Indebtedness (or offer to repurchase such 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 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 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 2.6(c)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 such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof.
(biii) If, for In the event that the Borrower or any fiscal quarter of its Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower beginning with the fiscal quarter ending March 31, 2009, there shall or any of its Subsidiaries (other than Indebtedness that is permitted to be Excess Cash Flowincurred under Section 6.01, the Borrower shall, on promptly upon (and in any event not later than two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable 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 Sections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary, apply 50% the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would violate or conflict with any Requirement of 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, member of management or consultant of such Foreign Subsidiary (it being understood and agreed that (i) solely within 365 days following the end of the applicable Excess Cash Flow Period or 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 and (ii) if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, 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 or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, 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 such Excess Cash Flow or such Subject Proceeds 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 (iv)),
(B) the Borrower 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 Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the distribution to the Borrower of such Excess Cash Flow toward or Subject Proceeds would be prohibited under the prepayment Organizational Documents governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “applicable Excess Cash Flow Application Date”) no Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than 45 days two Business Days after each fiscal quarter end for such distribution) applied to the first three fiscal quarters and 90 days in the case repayment of the fourth quarter Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)),
(C) 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 any fiscal year end. Notwithstanding amounts required to mandatorily prepay the foregoing Term Loans pursuant to Sections 2.11(b)(i) or (ii) above would result in a material and without duplication under adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the definition amount that the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds or Excess Cash Flow, directly or indirectly, from the relevant Foreign Subsidiary would no longer have a material adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount of Loans required equal to be repaid the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (b) for any fiscal quarter C), shall be reduced on a dollar for dollar basis by promptly applied to the amount repayment of optional prepayments of the Term Loans made pursuant to Section 2.5 during 2.11(b) as otherwise required above; and
(D) the Borrower 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 such fiscal quarterprepayment would violate the terms of any material contract binding on the Borrower or any of its Subsidiaries; it being understood that if the relevant prohibition in such contract ceases to exist, the relevant Person will promptly distribute such prepayment to be applied to the Term Loans pursuant to Section 2.11(b) to the extent required herein (without regard to this clause (iv)).
(cv) Amounts Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be applied in connection with prepayments made by the Borrower pursuant to this Section 2.6 shall be applied2.11(b), to the prepayment decline all (but not a portion) of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Borrower. If any Lender fails to deliver a notice to 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 Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
(vi) Except as otherwise contemplated by this Agreement or provided in, or intended with respect to any Incremental Facility Amendment or any Extension Amendment (provided, that such Incremental Facility Amendment or Extension Amendment may not provide that the applicable Class of Term Loans receive a greater than pro rata portion of mandatory prepayments of Term Loans pursuant to Section 2.11(b) than would otherwise be permitted by this Agreement), in each case effectuated or issued in a manner consistent with this Agreement, each prepayment of Term Loans pursuant to Section 2.11(b) shall be distributed applied ratably to each Class of Term Loans then outstanding which is pari passu with the Initial Loans in right of payment and with respect to security. With respect to each relevant Class of Term Loans, all accepted prepayments under this Section 2.11(b) shall be applied against the remaining scheduled installments of principal due in respect of such Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the prepaymentremaining scheduled amortization payments in respect of such Term Loans in direct order of maturity), on a pro rata basis, and each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage of the Loans held by Lenders that have elected applicable Class. If no Lender exercises the right to accept such Declined Amounts. Each waive a prepayment of the Term Loans under pursuant to Section 2.6 2.11(b)(v), the amount of such mandatory prepayment shall be accompanied applied first to the then outstanding Term Loans that are ABR Loans to the full extent thereof and then to the then outstanding Term Loans that are Adjusted Eurocurrency Rate Loans in a manner that minimizes the amount of any payments required to be made by accrued interest the Borrower pursuant to Section 2.16.
(vii) (A) In the event that the Revolving Credit Exposure of any Class exceeds the amount of the Revolving Credit Commitment of such Class then in effect, the Borrower shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans and/or reduce LC Exposure in an aggregate amount sufficient to reduce such Revolving Credit Exposure as of the date of such prepayment on payment to an amount not to exceed the amount prepaid; provided, that if a Eurodollar Loan is prepaid on Revolving Credit Commitment of such Class then in effect by taking any day other than the last day of the Interest Period applicable theretofollowing actions as it shall determine at its sole discretion: (x) prepaying Revolving Loans or (y) with respect to any excess LC Exposure, depositing Cash in a Cash collateral account established for the Borrower shall also pay any amounts owing pursuant benefit of the relevant Issuing Bank or “backstopping” or replacing the relevant Letters of Credit, in each case, in an amount equal to Section 2.103% of s
Appears in 1 contract
Sources: Credit Agreement (First Watch Restaurant Group, Inc.)
Mandatory Prepayments. (ai) Upon If on the consummation date that is six months after the Closing Date the aggregate principal amount of Loans outstanding is greater than $150,000,000, the Classmates IPOBorrower shall on such date repay an aggregate principal amount of Loans equal to the amount of then outstanding Loans minus $150,000,000.
(A) If the Borrower or any Restricted Subsidiary receives any Net Cash Proceeds from any Asset Sale or Casualty Event, the Borrower shall apply an amount equal to: to 100% of such Net Cash Proceeds to prepay Loans in accordance with Section 2.07(b)(iv) on or prior to the date which is five (i5) Business Days after the greater date of (xthe realization or receipt of such Net Cash Proceeds; provided that no such prepayment shall be required pursuant to this Section 2.07(b)(ii)(A) with respect to such Net Cash Proceeds that the Borrower shall reinvest in accordance with Section 2.07(b)(ii)(B), except that, with respect to an Asset Sale or Casualty Event with respect to the Equity Interests in or other Property of the Acquired Company or any of its Subsidiaries, the Borrower may reinvest no more than 50% of the net cash proceeds Net Cash Proceeds from such Asset Sale or Casualty Event in accordance with Section 2.07(b)(ii)(B).
(B) With respect to any Net Cash Proceeds realized or received by with respect to any Asset Sale or Casualty Event, at the option of the Borrower, the Borrower may reinvest, subject to the limitation in connection with the Classmates IPO and proviso to Section 2.07(b)(ii)(A) above, all or any portion of such Net Cash Proceeds in the business of the Borrower or any Restricted Subsidiary within six (y6) $30,000,000 months following receipt of such Net Cash Proceeds; provided that any such Net Cash Proceeds that are not so reinvested within the time period set forth above shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)2.07(b)(ii)(A) within five (5) Business Days after the end of the time period set forth above.
(bC) If, for If the Borrower or any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowRestricted Subsidiary incurs or issues any Refinancing Indebtedness, the Borrower shall, on the relevant Excess Cash Flow Application Date, shall apply 50an amount equal to 100% of such Excess Net Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis Proceeds received by the amount of optional prepayments of Loans made pursuant Borrower or any Restricted Subsidiary therefrom to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of prepay the Loans in accordance with Section 2.12(b2.07(b)(iv) on the date of receipt of such Net Cash Proceeds.
(unless otherwise agreed to iii) The Borrower shall notify the Administrative Agent in writing by of any mandatory prepayment of Loans required to be made pursuant to clause (ii) of this Section 2.07(b) at least three (3) Business Days prior to the date of such prepayment. Each such notice shall specify the date and among Lenders); 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.
(provided that any Lender may decline any such iv) Each prepayment (collectively, the “Declined Amount”), in which case the Declined Amount of Loans pursuant to this Section 2.07(b) shall be distributed applied, subject to the prepaymentSection 2.16(a)(ii), on a pro rata basis, of basis to the Loans held by Lenders that have elected to accept such Declined Amounts. Each outstanding Loans.
(v) Any prepayment of the Loans under pursuant to this Section 2.6 2.07(b) shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower extent required by Section 2.09 and shall also pay any amounts owing pursuant be subject to Section 22.12.
Appears in 1 contract
Sources: Credit Agreement (J2 Global, Inc.)
Mandatory Prepayments. The Borrower shall provide written notice to the Agent by 1:00 p.m. (aNew York time) Upon three (3) Business Days prior to any mandatory prepayment hereunder, which shall state the consummation amount to be prepaid and a reasonable detailed calculation thereof and the date of prepayment. In addition to any prepayment required in accordance with Section 10.2 as a result of an Event of Default hereunder, subject to the terms of the Classmates IPOIntercreditor Agreements, an amount equal to: the Loans shall be subject to mandatory prepayment as follows:
(i) in an aggregate amount equal to 100% of the Net Cash Proceeds received by any Loan Party or any Subsidiary from all Asset Dispositions (other than any Excluded Asset Disposition) or Casualty Events within five (5) Business Days of the receipt of such Net Cash Proceeds by such Person; provided no proceeds of any prepayment under this Section 2.5(b)(i) shall be required unless the amount required to be prepaid for such fiscal year is in an aggregate amount greater than or equal to $3,000,000 (and only the amount in excess of such threshold), and so long as (A) no Default or Event of Default shall have occurred and be continuing and (B) the Total Leverage Ratio as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered pursuant to Section 7.11(b) is less than or equal to 2.00 to 1.00, such Net Cash Proceeds of any Asset Disposition consummated pursuant to Section 8.5(k) or Section 8.5(n) shall not be required to be so applied at the election of the Borrower to the extent such Loan Party or such Subsidiary reinvests, within twelve (12) months of receipt of such Net Cash Proceeds, all or any portion of such Net Cash Proceeds in assets used in the business of the Loan Parties and their Subsidiaries; provided, further, that if, prior to the expiration of such twelve (12) month period, the Borrower, directly or through its Subsidiaries, shall have entered into a binding agreement providing for such investment on or prior to the date that is six (6) months after the expiration of such twelve (12) month period, such twelve (12) month period shall be extended to an eighteen (18) month period; provided, further, if such Net Cash Proceeds shall have not been so reinvested, such Net Cash Proceeds shall be immediately applied to prepay the Loans; provided, further, that, subject to the final proviso of this Section 2.5(b)(i), promptly following the receipt of such Net Cash Proceeds by a Loan Party (and in any event no more than five (5) Business Days following the receipt thereof, or such longer period as the Agent may reasonably agree (at the direction of the Required Lenders)), such Loan Party shall deposit such Net Cash Proceeds into a Term Loan Priority Collateral Proceeds Account, and such Net Cash Proceeds shall remain in such Term Priority Collateral Proceeds Account until reinvested or applied to prepay the Loans, in each case in accordance with this Section 2.5(b)(i); provided further, that there shall be no requirement for the establishment of any such Term Loan Priority Collateral Proceeds Account, or any requirement for the deposit of any such Net Cash Proceeds so long as any First Lien Obligations remain outstanding;
(ii) immediately upon the receipt by the Borrower or any Subsidiary of the Net Cash Proceeds of any Prohibited Debt Issuance, in an aggregate amount equal to 100% of such Net Cash Proceeds;
(iii) on the date that is five (5) Business Days after the earlier of (x) the date that each annual Compliance Certificate is delivered under Section 7.11(d) in connection with the audited Financial Statements delivered pursuant to Section 7.11(a) or (y) the date such annual Compliance Certificate is required to be delivered pursuant to Section 7.11(d), commencing with the fiscal year ending December 31, 2025, in an amount equal to the difference (if a positive number) of (i) fifty percent (50%) of Excess Cash Flow for each such fiscal year (provided that such prepayment percentage shall be twenty-five (25%) if, as of the last day of the most recently ended fiscal year, the First Lien Net Leverage Ratio (determined for any such period by reference to the Compliance Certificate delivered pursuant to Section 7.11(d) calculating the First Lien Net Leverage Ratio as of the last day of such fiscal year) shall be 3.75 to 1.00 or less), minus (ii) optional prepayments of Loans made with Internally Generated Cash;
(iv) 100% of the net cash proceeds Cure Amount upon receipt by the Borrower of any Cure Amount;
(v) in an aggregate amount equal to 100% of Extraordinary Receipts in excess of $250,000 in the aggregate in any calendar year received by any Loan Party or any Subsidiary within five (5) Business Days of the date of receipt of such Extraordinary Receipts;
(vi) immediately upon a Change of Control, all outstanding Loans and all outstanding Obligations; and
(vii) in an aggregate amount equal to 100% of the principal amount of any First Lien Delayed Draw Term Loans under the First Lien Credit Agreement drawn by the Borrower (without deduction for any fees, costs or expenses payable by the Borrower in connection with the Classmates IPO and therewith) within two (y2) $30,000,000 shall be applied on the date Business Days of the Classmates IPO toward the prepayment receipt of the Loans and other amounts as set forth in Section 2.6(c)proceeds thereof.
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)[Reserved].
(b) IfIn addition to any other mandatory repayments pursuant to this Section 2.11, for after giving effect to and subject to any fiscal quarter mandatory prepayments required under any Permitted Funding Indebtedness, within three (3) Business Days following each date on or after the Closing Date upon which the Credit Parties or any of Borrower beginning with their Subsidiaries receives any Net Cash Proceeds from any Recovery Event (other than individual Recovery Events where the fiscal quarter ending March 31Net Cash Proceeds therefrom do not exceed $2,000,000), 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50an amount equal to 100% of such Excess Net Cash Flow toward Proceeds shall be applied on such date as a mandatory repayment in accordance with the prepayment requirements of the Loans and other amounts as set forth in Section 2.6(c2.11(g). Each ; provided that no such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (bSection 2.11(b) for with respect to such portion of such Net Cash Proceeds that the Credit Parties or any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant their Subsidiaries intend to reinvest or that has been reinvested in their business, in each case, in accordance with Section 2.5 during such fiscal quarter2.11(i) and Section 6.10.
(c) Amounts In addition to any other mandatory repayments pursuant to this Section 2.11, within three (3) Business Days following each date on or after the Closing Date upon which the Credit Parties or any of their Subsidiaries receives any Net Cash Proceeds from any sale by the Borrower to Rithm (or a Subsidiary or Affiliate thereof) of Equity Interests (including the issuance of the Borrower’s common stock pursuant to its at-the-market offering program), an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.11(g).
(d) In addition to any other mandatory repayments pursuant to this Section 2.11, within three (3) Business Days following each date on or after the Closing Date upon which the Credit Parties or any of their Subsidiaries receives any Net Cash Proceeds from any issuance or incurrence, as applicable, by the Borrower or any Subsidiary of (x) non-asset based Indebtedness (other than non-asset based Indebtedness permitted to be incurred pursuant to Section 6.04) or (y) Permitted Funding Indebtedness attributable to the financing of any Retained Securities (other than any Retained Security Refinancing Indebtedness), an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.11(g).
(e) In addition to any other mandatory repayments pursuant to this Section 2.11, substantially contemporaneously with any Credit Party’s or any Subsidiary’s receipt of any Net Cash Proceeds from any exercise of any of the Rithm Warrants, an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.11(g).
(f) In addition to any other mandatory repayments pursuant to this Section 2.11, within three (3) Business Days following each date on or after the Closing Date upon which the Credit Parties or any of their Subsidiaries receives any Net Cash Proceeds from the Disposition of any assets (including, without limitation, (i) if consummated, each Specified Permitted Funding Asset Disposition and (ii) any other Disposition of any Permitted Funding Assets), an amount equal to 100% of such Net Cash Proceeds shall be applied on such date as a mandatory repayment in accordance with the requirements of Section 2.11(g). For the avoidance of doubt, the following are not Dispositions for purposes of this Section 2.11(f): (i) the sale of a Permitted Funding Asset under a Repurchase Agreement, (ii) the pledge of an asset for collateral security and (iii) the sale of any asset (other than any direct or indirect sale of any Permitted Funding Asset) in the Ordinary Course of Business. The direct or indirect sale of any Permitted Funding Asset (even if in the Ordinary Course of Business) is a Disposition for purposes of this Section 2.11(f).
(g) Each amount required to be applied in connection with prepayments made pursuant to Section 2.6 2.11(a) through Section 2.11(f) in accordance with this Section 2.11(g) shall be appliedapplied pro rata according to the respective outstanding principal amounts of the Loans then held by the Lenders.
(h) The Borrower shall deliver to the Administrative Agent, if practicable, at least three (3) Business Days prior to each prepayment required under this Section 2.11 but in any event not later than the date and time of each prepayment required under this Section 2.11, a certificate signed by an Authorized Officer of the Borrower setting forth in reasonable detail the calculation of the amount of such prepayment. Each notice of prepayment shall specify the prepayment date, and the principal amount of the Loans (or portion thereof) to be prepaid. All prepayments of Loans pursuant to Section 2.11(a) through Section 2.11(f) shall be accompanied by accrued and unpaid interest on the principal amount to be prepaid to but excluding, the date of payment.
(i) With respect to any Net Cash Proceeds received with respect to any Recovery Event, the Borrower or any Subsidiary may reinvest all or any portion of such Net Cash Proceeds in its business (including in Investments not prohibited hereby) prior to the date that is the later of (i) twelve (12) months following receipt of such Net Cash Proceeds or (ii) if the Borrower or any Subsidiary enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, eighteen (18) months following receipt thereof; provided that if any Net Cash Proceeds are not reinvested by the deadline specified this Section 2.11(i), an amount equal to such Net Cash Proceeds shall be applied to the prepayment of the Loans as set forth in Section 2.11(b); provided further, that such proceeds shall not constitute Net Cash Proceeds except to the extent not so used at the end of such period, at which time such proceeds shall be deemed to be Net Cash Proceeds.
(j) Notwithstanding anything in this Section 2.11 to the contrary, the Borrower or any Subsidiary shall only be required to make a prepayment (or, prior to the Closing Date, the Maximum Loan Amount shall only be reduced in accordance with Section 2.12(bclause (i)(C) (unless otherwise agreed to in writing by of the definition thereof) of the excess of such Net Cash Proceeds, if any, such that the Borrower and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepaymentits Subsidiaries, on a pro rata consolidated basis, have no more than $50,000,000 in the aggregate of cash and Cash Equivalents after receipt of such Net Cash Proceeds and application of the Loans held by Lenders prepayment; provided that have elected to accept such Declined Amounts. Each prepayment this Section 2.11(j) shall not be applicable in the event of the Loans under Section 2.6 shall be accompanied by accrued interest to the date sale of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day all or substantially all of assets of the Interest Period applicable theretoBorrower (in a single or series of transactions), and, for the Borrower shall also pay any amounts owing pursuant to Section 2avoidance of doubt, including sales of the equity interests of all or a substantial portion of its Subsidiaries.
Appears in 1 contract
Sources: Credit Agreement (Great Ajax Corp.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, If there shall be Excess Cash FlowFlow for any Fiscal Year as of the last day of which the aggregate outstanding principal amount of the Term Loans equals or exceeds Twenty Million Dollars ($20,000,000), the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% thirty-three percent (33%) of such Excess Cash Flow toward the prepayment of the Term Loans and other amounts as set forth in Section 2.6(c2.13(b), and (ii) if there shall be Excess Cash Flow for any Fiscal Year as of the last day of which the aggregate outstanding principal amount of the Term Loans equals or exceeds Ten Million Dollars ($10,000,000) but is less than Twenty Million Dollars ($20,000,000), Borrower shall, on the relevant Excess Cash Flow Application Date, apply twenty-five percent (25%) of such Excess Cash Flow toward the prepayment of the Term Loans and other amounts as set forth in Section 2.13(b). Each such prepayment shall be made on a date (each an “Excess Cash Flow Application Date”) occurring no later than 45 days after each fiscal quarter end the earliest of (x) the date on which the financial statements of Borrower referred to in Section 6.1(a), for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash FlowFiscal Year with respect to which such prepayment is made, the amount of Loans are required to be repaid pursuant delivered to this clause the Administrative Agent, (by) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount date such financial statements are actually delivered and (z) March 31st of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarteryear.
(cb) Amounts to be applied in connection with prepayments made pursuant to this Section 2.6 2.13 shall be applied, applied to the prepayment of installments due in respect of the Term Loans in reverse order of maturity and in accordance with Section 2.12(bSections 2.3 and 2.19(b) (unless otherwise agreed to in writing by and among Lenders); (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 to the prepayment, on a pro rata basis, of the Term Loans held by Term Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under this Section 2.6 2.13 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided. Borrower shall deliver to the Administrative Agent and each Term Lender notice of each prepayment of Term Loans in whole or in part pursuant to this Section 2.13 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 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 if 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.
(c) Borrower shall deliver to the Administrative Agent, at the time of each prepayment required under this Section 2.13, (i) a Eurodollar Loan is prepaid on any day other than certificate signed by a Responsible Officer of Borrower setting forth in reasonable detail the last day calculation of the Interest Period applicable theretoamount of such prepayment and (ii) to the extent practicable, at least ten (10) days’ prior written notice of such prepayment (and the Borrower Administrative Agent shall also pay promptly provide the same to each Lender). Each notice of prepayment shall specify the prepayment and the principal amount of the Term Loan to be prepaid.
(d) No prepayment fee shall be payable in respect of any amounts owing mandatory prepayments made pursuant to this Section 22.13.
Appears in 1 contract
Mandatory Prepayments. (a) Upon In the consummation event of any termination of all the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowRevolving Credit Commitments, the Borrower shall, on the relevant Excess date of such termination, repay or prepay all its outstanding Revolving Credit Borrowings and replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and the Issuing Bank with respect to) all outstanding Letters of Credit. If, after giving effect to any partial reduction of the Revolving Credit Commitments or at any other time, the Aggregate Revolving Credit Exposure would exceed the Total Revolving Credit Commitment, then the Borrower shall, on the date of such reduction or at such other time, repay or prepay Revolving Credit Borrowings and, after the Revolving Credit Borrowings shall have been repaid or prepaid in full, replace or cause to be canceled (or make other arrangements satisfactory to the Administrative Agent and the Issuing Bank with respect to) Letters of Credit in an amount sufficient to eliminate such excess.
(b) Not later than the fifth Business Day after the earlier of (i) the receipt of aggregate Net Cash Flow Application DateProceeds in respect of Asset Sales (other than, for the avoidance of doubt, sales of Receivables in a Permitted Receivables Transaction) in excess of $50,000,000 and (ii) the first anniversary of the Borrower’s most recent prepayment pursuant to this Section 2.13(b), the Borrower shall apply 50100% of such Excess the Net Cash Flow toward the prepayment Proceeds in excess of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end $50,000,000 for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding so received (and not yet used to prepay Term Loans pursuant to this Section 2.13(b)) to prepay outstanding Term Loans in accordance with Section 2.13(g); provided that the foregoing and without duplication under Borrower may use a portion of such Net Cash Proceeds to prepay or repurchase Other Senior Secured Debt to the definition extent any applicable credit agreement, indenture or other agreement governing such Other Senior Secured Debt requires the Borrower to prepay or make an offer to purchase such Other Senior Secured Debt with the proceeds of Excess Cash Flowsuch Asset Sale, in each case in an amount not to exceed the product of (A) the amount of Loans required to be repaid pursuant to this clause such Net Cash Proceeds and (bB) for any fiscal quarter shall be reduced on a dollar for dollar basis by fraction, the numerator of which is the outstanding principal amount of optional prepayments such Other Senior Secured Debt and the denominator of Loans made pursuant to Section 2.5 during which is the sum of the outstanding principal amount of such fiscal quarterOther Senior Secured Debt and the outstanding principal amount of Term Loans.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to No later than 95 days after the prepayment end of each fiscal year of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretoBorrower, the Borrower shall also pay any amounts owing pursuant to Section 2.prepay outstanding Term Loans in accordance with
Appears in 1 contract
Mandatory Prepayments. (a) Upon Immediately upon receipt by the consummation Borrower or any of its Restricted Subsidiaries of any Net Proceeds of any sale or disposition by the Classmates IPOBorrower or any of 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 prepay the Term Loans in an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by to all such Net Proceeds; provided that the Borrower shall not be required to prepay the Term Loans with respect to Net Proceeds from the sales of assets in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date ordinary course of the Classmates IPO toward the prepayment business, from sales of the Loans and other amounts as set forth assets or from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in Section 2.6(c).assets
(b) IfNo 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, for (i) that is not permitted to be issued or incurred pursuant to Section 7.1 or (ii) that is intended to constitute Refinancing Term Loans in respect of any fiscal quarter Class of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowTerm Loans, the Borrower shall, on shall prepay the relevant Excess Cash Flow Application Date, apply 50% Obligations in respect of such Excess Cash Flow toward the prepayment Class of the Term Loans and other amounts as set forth in Section 2.6(c)an amount equal to all such Net Proceeds. Each Any such prepayment shall be made applied in accordance with subsection (d) of this Section.
(c) No later than five (5) Business Days after the date on a date 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, 2025), (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 Term Loans in an “amount equal to 50% of Excess Cash Flow Application Date”for such Fiscal Year, (ii) no later than 45 days after each fiscal quarter end for to the first three fiscal quarters and 90 days in extent that the case Total Net Leverage Ratio as of the fourth quarter last day of any fiscal year end. Notwithstanding such Fiscal Year is less than or equal to 2.50:1.00 but greater than 2.00:1.00, the foregoing and without duplication under Borrower shall prepay the definition Term Loans in an amount equal to 25% of Excess Cash FlowFlow 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, the no prepayment shall be required; provided that such amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar-for-dollar basis for such Fiscal Year by an amount equal to the sum of (i) the aggregate amount of optional 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 2.5 2.11, (ii) without duplication of amounts deducted from Excess Cash Flow pursuant to clause (k) in the definition of “Excess Cash Flow” in prior Fiscal Years, the amount of Capital Expenditures or acquisitions of intellectual property rights accrued or made in cash during such fiscal quarter.period, (iii) the aggregate amount of all (x) repurchases and buybacks of Term Loans (and, in the case of any such repurchases or buybacks made as a discount to par, limited to the cash purchase price in respect thereof), (y) voluntary prepayments, repurchases and buyback of Other Pari Indebtedness (other than under a revolving facility) (in the case of any such voluntary prepayments, repurchases or buybacks made at a discount to par, limited to the cash purchase and in respect
(d) Any prepayments made by the Borrower pursuant to subsections (a), (b) or (c) Amounts of this Section shall be applied to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans in direct order of maturity. The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be applied in connection with prepayments made pursuant to clauses (a) and (c) of this Section 2.6 shall be applied, 2.12 prior to the prepayment of the Loans in accordance with Section 2.12(b1:00 p.m. at least five (5) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest Business Days prior to the date of such prepayment. Each such notice shall specify the date of such prepayment on and provide a reasonably detailed calculation of the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of such prepayment. The Administrative Agent will promptly notify each Lender of the Interest Period applicable theretocontents of the Borrower’s prepayment notice and of such ▇▇▇▇▇▇’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, 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 “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. three (3) Business Days after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment of Term Loans
(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 also pay 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 owing pursuant to due under Section 2.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Within ten (10) Business Days after financial statements have been delivered (or were required to be delivered) pursuant to Section 6.01(a) and the greater related Compliance Certificate has been delivered pursuant to Section 6.02(a) (commencing with the financial statements to be delivered with respect to the fiscal year ending December 31, 2025), the Initial Borrower shall offer to prepay (or cause an offer to prepay) an aggregate principal amount of Term Loans equal to (xA) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shallif any, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding covered by such financial statements, minus (B) the foregoing and sum of (without duplication under of amounts deducted pursuant to the definition of Excess Cash Flow) (i) all voluntary prepayments of Term Loans and any other prepayments of Permitted Additional Debt and/or other Indebtedness secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral securing the Restatement Date Term Loans or, the Term B-1 Loans or the Term B-2 Loans (including in connection with debt buybacks made by the Initial Borrower in an amount of Loans required equal to be repaid the discounted amount actually paid in respect thereof pursuant to this clause Section 2.05(d), Section 10.07 and/or otherwise, and/or application of any “yank-a-bank” provisions) during such fiscal year and (bii) for any all voluntary prepayments of Revolving Credit Loans during such fiscal quarter shall be year to the extent the applicable Revolving Credit Commitments are permanently reduced on a dollar for dollar basis by the amount of optional such payments or any voluntary prepayments of revolving loans or other revolving Indebtedness constituting Permitted Additional Debt or an Incremental Revolving Credit Commitment Increase secured by Liens on the Collateral on a pari passu basis or senior basis to the Liens on the Collateral securing the Revolving Credit Loans made to the extent the applicable commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (i) and (ii), in each case, during such fiscal year or, without duplication of any amounts deducted in any previous fiscal year, after year-end and prior to the time such prepayment is required pursuant to this Section 2.05(b) and, in each case, other than to the extent any such prepayment is funded with the proceeds of long-term Indebtedness; provided that (x) the ECF Percentage shall be 25% if the First Lien Net Leverage Ratio as of the last day of the fiscal year covered by such financial statements was equal to or less than 2.00:1.00 and greater than 1.50:1.00 and (y) the ECF Percentage shall be 0% if the First Lien Net Leverage Ratio as of the last day of the fiscal year covered by such financial statements was equal to or less than 1.50:1.00. Notwithstanding the foregoing, no prepayment pursuant to this Section 2.05(b)(i) shall be required in any fiscal year unless the amount of such prepayment for such fiscal year exceeds $25,000,000 (and, in such case, only the amount by which such prepayment amount for such fiscal year exceeds $25,000,000 shall be required to prepaid hereunder).
(A) Subject to Section 2.05(b)(ii)(B), if (x) GBT or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05 (except Dispositions outside the ordinary course of business pursuant to Section 2.5 during 7.05(l), Section 7.05(m)(ii) and Section 7.05(x)), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by GBT or such Restricted Subsidiary of Net Cash Proceeds, the Initial Borrower shall offer to make a prepayment (or cause an offer to make a prepayment), in accordance with Section 2.05(b)(ii)(C), of an aggregate principal amount of Term Loans equal to 100% (such percentage as it may be reduced as described below, the “Asset Sale Sweep Percentage”) or, if any Indebtedness (other than the Loans) is outstanding that constitute First Lien Obligations and that require a prepayment from such Net Cash Proceeds a percentage equal to the product of the Asset Sale Sweep Percentage multiplied by a fraction the numerator of which is the aggregate principal amount of Loans outstanding and the denominator of which is the aggregate principal amount of Loans and such other Indebtedness outstanding (such percentage, the “Asset Percentage”) of all such Net Cash Proceeds realized or received; provided that no such prepayment shall be required pursuant to this Section 2.05(b)(ii)(A) with respect to such portion of such Net Cash Proceeds that the Initial Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intention to reinvest, or, in the case of a Restricted Subsidiary, cause to be reinvested, in accordance with Section 2.05(b)(ii)(B); provided, further, that the Asset Sale Sweep Percentage shall be 50% if the First Lien Net Leverage Ratio for the most recent Test Period for which Section 6.01 Financials have been delivered was equal to or less than 2.00:1.00 and greater than 1.50:1.00 and (y) the Asset Sale Sweep Percentage shall be 0% if the First Lien Net Leverage Ratio for the fiscal quarteryear covered by such financial statements was equal to or less than 1.50:1.00.
(cB) Amounts With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than any Disposition specifically excluded from the application of Section 2.05(b)(ii)(A)) or any Casualty Event, at the option of the Initial Borrower, the Initial Borrower may reinvest, or, in the case of a Restricted Subsidiary, cause to be applied reinvested, all or any portion of such Net Cash Proceeds in connection with prepayments made pursuant its business within (x) 24 months following receipt of such Net Cash Proceeds or (y) if the Initial Borrower or other applicable Restricted Subsidiary enters into a legally binding commitment to Section 2.6 reinvest such Net Cash Proceeds within 24 months following receipt thereof, within the later of (1) 24 months following receipt thereof or (2) one hundred and eighty (180) days of the date of such legally binding commitment; provided that if any Net Cash Proceeds are not so reinvested by the deadline specified in clause (x) or (y) above, as applicable, an amount equal to the Asset Sale Sweep Percentage or Asset Percentage (as applicable) of any such Net Cash Proceeds shall be applied, offered to the prepayment of the Term Loans as set forth in this Section 2.05(b).
(C) On each occasion that the Initial Borrower must make a prepayment of the Term Loans pursuant to this Section 2.05(b)(ii), the Initial Borrower shall, within five (5) Business Days after the date of realization or receipt of such Net Cash Proceeds (or, in the case of prepayments required pursuant to Section 2.05(b)(ii)(B), within five (5) Business Days of the deadline specified in clause (x) or (y) thereof, as applicable, or of the date the Initial 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 (or cause an offer to make a prepayment), in accordance with Section 2.12(b2.05(b)(v) below, of the principal amount of Term Loans in an amount equal to the Asset Sale Sweep Percentage or Asset Percentage (as applicable) of such Net Cash Proceeds realized or received.
(iii) On each occasion that a Debt Incurrence Prepayment Event occurs, the Initial Borrower shall, within one Business Day after the receipt of Net Cash Proceeds from a Debt Incurrence Prepayment Event, offer to prepay, in accordance with clause (iv) below, a principal amount of Term Loans and unpaid accrued interest and premium thereon in an amount equal to 100% of the Net Cash Proceeds from such Debt Incurrence Prepayment Event.
(iv) Except as set forth in clause (vii) below and subject to clause (v) below, (x) each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, in the first instance to the Term Loans, to the Repayment Amounts (and, with respect to the pro rata share thereof applied to the Term B-1-2 Loans, such amount shall be applied to the Term B-1-2 Loan Repayment Amounts in direct order of maturity to the first applicable eight scheduled Term B-1-2 Loan Repayment Amounts contemplated in Section 2.07 following the applicable prepayment event and then pro rata to the remaining scheduled Term B-1-2 Loan Repayment Amounts) following the applicable prepayment event; and each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares and (y)(A) each prepayment of Term Loans required by Sections 2.05(b)(i), (ii) and (iii) (solely in the case of a Debt Incurrence Prepayment Event unrelated to the incurrence of Refinancing Amendment Debt Incurred in reliance on Section 2.17 and Permitted Additional Debt Incurred in reliance on Section 7.03(u)(i)) shall be allocated to the Classes of Term Loans outstanding, pro rata, based upon the applicable remaining Repayment Amounts due in respect of each such Class of Term Loans, shall be applied pro rata to Lenders within each Class, based upon the outstanding principal amounts owing to each such Lender under each such Class of Term Loans and shall be applied to reduce such scheduled Repayment Amounts within each such Class in accordance with clause (x) above and (B) each prepayment of Term Loans required by clause (iii) above in connection with a Debt Incurrence Prepayment Event related to the incurrence of Refinancing Amendment Debt Incurred in reliance on Section 2.17 and/or Permitted Additional Debt Incurred in reliance on Section 7.03(u)(i), the proceeds of which are intended to Refinance Term Loans, shall be allocated to any Class of Term Loans outstanding as directed by the Initial Borrower, shall be applied pro rata to Lenders within each applicable Class, based upon the outstanding principal amounts owing to each such Lender under each such Class of Term Loans and shall be applied to reduce such scheduled Repayment Amounts within each such Class in accordance with clause (x) above; provided that with respect to the allocation of such prepayments under clause (A) above only between an Existing Term Loan Class and Extended Term Loans of the same Extension Series, the Initial Borrower may allocate such prepayments as the Initial Borrower may specify, subject to the limitation that the Initial Borrower shall not allocate to Extended Term Loans of any Extension Series any such mandatory prepayment under such clause (A) unless such prepayment is accompanied by at least a pro rata prepayment, based upon the applicable remaining Repayment Amounts due in respect thereof, of the Term Loans of the Existing Term Loan Class, if any, from which such Extended Term Loans were converted or exchanged (or such Term Loans of the Existing Term Loan Class have otherwise agreed been repaid in full). In the second instance, each prepayment of Loans pursuant to this Section 2.05(b) shall be applied to the prepayment of Revolving Credit Loans and Extended Revolving Credit Loans (without affecting a permanent reduction of the Commitments) on a basis consistent with the pro rata application described in connection with the prepayment of Term Loans in this Section 2.05(b)(iv), and finally to Cash Collateralize issued Letters of Credit.
(v) The Initial Borrower shall notify the Administrative Agent in writing by of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i), (ii), and among Lenders); (provided that any iii) of this Section 2.05(b) at least one (1) Business Day prior to 1:00 p.m. on the date of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Initial Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Appropriate Lender may decline reject all or a portion of its Pro Rata Share of any mandatory prepayment of Term Loans (such prepayment (collectivelydeclined amounts, the “Declined AmountProceeds”) required to be made pursuant to clauses (i) and (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Initial Borrower no later than in the case of clauses (i) and (ii) of this Section 2.05(b), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to 9:00 a.m. one (1) Business Day after the date of such prepayment on ▇▇▇▇▇▇’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretomandatory 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 such mandatory prepayment of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be returned to and be permitted to be retained by the Initial Borrower shall also pay (“Retained Declined Proceeds”).
(vi) Notwithstanding any amounts owing other provisions of this Section 2.05(b), (i) to the extent that any of or all the Net Cash Proceeds of any Disposition by a Non-Loan Party giving rise to a prepayment pursuant to Section 22.05(b)(ii) (a “Non-Loan Party Disposition”), the Net Cash Proceeds of any Casualty Event from a Non-Loan Party (a “Non-Loan Party Casualty Event”), or Excess Cash Flow is prohibited or delayed by applicable local Law from being repatriated to the United States, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be offered to prepay Term Loans at the times provided in Section 2.05(b)(i), or the Initial Borrower shall not be required to offer to prepay the Term Loans at the time provided in Section 2.05(b)(ii), as the case may be. Instead, such amounts may be retained by the applicable Non-Loan Party so long, but only so long, as the applicable local Law will not permit repatriation to the United States (the Initial Borrower hereby agreeing to cause the applicable Non-Loan Party to use commercially reasonable efforts to take actions required by the applicable local Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds or Excess Cash Flow is permitted under the applicable local Law, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be promptly (and in any event not later than three (3) Business Days after such repatriation) offered to be applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that the Initial Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Non-Loan Party Disposition, any Non-Loan Party Casualty Event or Excess Cash Flow would have a material adverse tax cost consequence to GBT, the Initial Borrower or any Restricted Subsidiary (whether as a result of a deemed dividend, a tax cost, withholding tax or otherwise, but, in any case, taking into account any foreign tax credit or benefit received 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 retained by the applicable Non-Loan Party; provided that in the case of this clause (ii), on or before the date on which any Net Cash Proceeds so retained would otherwise have been required to be applied to reinvestments or prepayments pursuant to this Section 2.05(b) (or such Excess Cash Flow would have been so required if it were Net Cash Proceeds), (x) the Initial Borrower shall apply 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 Initial Borrower rather than such Non-Loan Party, 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 calculated if received by such Non-Loan Party) or (y) such Net Cash Proceeds or Excess Cash Flow shall be applied to the repayment of Indebtedness of a Non-Loan Party.
(vii) With respect to each prepayment of Revolving Cr
Appears in 1 contract
Sources: Amendment No. 2 (Global Business Travel Group, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater of fifth (x5th) 50% Business Day after the date on which the financial statements with respect to each Fiscal Year of the net cash proceeds received Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or around December 31, 2022, the Borrower shall prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Calculation Period then ended, minus (B) $15,000,000 minus (C) unless otherwise elected by the Borrower (in which case any such amount shall be deducted from the calculation of Excess Cash Flow instead), the aggregate principal amount optionally or voluntarily Prepaid (to the extent permitted under this Agreement and without duplication of the amount thereof applied to reduce the ECF Prepayment Amount in the prior Fiscal Year) prior to such date of (1) any Initial Term Loans, any other Term Loans, Incremental Equivalent Debt or any Additional Revolving Loans prepaid pursuant to Section 2.11(a), any ABL Loans and any Permitted Senior Secured Debt, and (2) any Replacement Notes, based upon the actual amount of cash paid in connection with the Classmates IPO relevant assignment or purchase, except, in each case, to the extent financed with Long-Term Funded Indebtedness; provided that, in each case, with respect to the ABL Facility, any Incremental Revolving Facility and any Replacement Revolving Facility, to the extent accompanied by a permanent reduction in the relevant commitment, minus (D) all Cash payments in respect of capital expenditures as would be reported in the Borrower’s consolidated statement of cash flows made during such Calculation Period and, at the option of the Borrower, in the case of any Calculation Period, any Cash payments in respect of any such capital expenditures made prior to the date of the Excess Cash Flow payment in respect of such Calculation Period, except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (E) Cash payments made during such Calculation Period (or, at the option of the Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the applicable Excess Cash Flow payment) in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 (including Investments in joint ventures, but excluding Investments in (x) Cash and Cash Equivalents and (y) $30,000,000 the Borrower or any of its Restricted Subsidiaries), except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (F) unless otherwise elected by the Borrower (in which case any such amount shall be applied on deducted from the calculation of Excess Cash Flow instead), Cash payments made during such Calculation Period (or, at the option of the Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the Classmates IPO toward applicable Excess Cash Flow payment) in respect of Restricted Payments made under Sections 6.04(a)(i), (ii), (iv), (v), (viii)(B), (x), (xi), (xiii) and (xv). Notwithstanding the foregoing, (I) if at the time that any such prepayment would be required, the Borrower (or any other Restricted Subsidiary of the Borrower) is also required to Prepay any Indebtedness that is secured on a pari passu basis with the First Priority Secured Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so Prepaid, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time) to the Prepayment of such Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof and (II) to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (unless such other application is otherwise permitted hereunder).
(ii) No later than the fifth (5th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds (in each case, excluding Net Proceeds attributable to ABL Priority Collateral), in each case, in excess of $30,000,000 in the aggregate in any Fiscal Year (in each case, the amount of such excess, the “Subject Proceeds”; provided that, any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds the Net Proceeds of which are less than $20,000,000 with respect to any single event or transaction (or series of related events or transactions) shall not be subject to this Section 2.11(b)(ii)), the Borrower shall apply an amount equal to the Asset Sale Prepayment Percentage of such Subject Proceeds to prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) below; provided, that if, prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within fifteen (15) months following receipt thereof or (B) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 15-month period and the Subject Proceeds are so reinvested within six (6) months after the expiration of such 15-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that (x) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay (or offer to repay or repurchase) any 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 Prepay of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount)); provided, further, that 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 Term Loans in accordance with the terms hereof, and (y) to the extent the holders of the Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof. Notwithstanding anything to the contrary herein or in any other amounts as set forth in Section 2.6(c)Loan Document, the Net Proceeds of any Disposition of any ABL US Priority Collateral shall not be required to be applied to the prepayment of the Initial Term Loans hereunder.
(biii) IfIn the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for except to the extent the relevant Indebtedness constitutes (A) Replacement Term Loans, Replacement Revolving Facility or Replacement Notes incurred to refinance all or a portion of any fiscal quarter Class or Classes of Borrower beginning Term Loans (as determined by the Borrower) in accordance with the fiscal quarter ending March 31requirements of Section 9.02(c)), 2009, there shall be Excess Cash Flowor (B) Incremental Loans or Incremental Equivalent Debt incurred to refinance all or a portion of any Class or Classes of Term Loans to the extent required by the terms thereof to prepay or offer to prepay such Term Loans and such Incremental Loans or Incremental Equivalent Debt do not constitute utilization of the Incremental Cap pursuant to Section 2.22), the Borrower shall, on promptly upon (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or its 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)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary, apply 50% the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be -1- prohibited under any Requirement of Law or conflict with the fiduciary duties of such Excess Cash Flow toward 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 (it being agreed that, solely during the prepayment period within one (1) year following the date such prepayments are required to be made, the Borrower shall, and shall cause the applicable Foreign Subsidiary to, promptly use commercially reasonable efforts to take all actions required by applicable Requirements of Law to permit such repatriation) and if after taking such actions, the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above within one (1) year following the date such prepayments are required to be made, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)(A)) or the Borrower or another subsidiary may, at its option, apply to such repayment an equivalent amount with the Foreign Subsidiary not repatriating the actual Subject Proceeds or Excess Cash Flow; and
(B) if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower of any amounts required to mandatorily prepay the Initial Term Loans and other Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in any Parent Company, Holdings, the Borrower or any Restricted Subsidiary incurring material Tax liabilities (including any material withholding Tax) or material adverse Tax consequences (such amount, a “Restricted Amount”), as reasonably determined by the Borrower, the amount the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as the Restricted Amount may be repatriated (or otherwise distributed) to the Borrower without the incurrence of such material Tax liability or material adverse Tax consequences (each, as determined in good faith by the Borrower); provided, that to the extent that the repatriation (or other intercompany distribution) of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material Tax liability or material adverse Tax consequences within one (1) year following the date such prepayments are required to be made, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv)(B));
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be repaid made by the Borrower pursuant to this clause Section 2.11(b), to decline all (bbut not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”); provided that (A) to the extent that any such prepayment is declined, the remaining amount thereof may be retained by the Borrower and (B) for the avoidance of doubt, no Lender may reject any fiscal quarter prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with Indebtedness described in clauses (A) or (B) of Section 2.11(b)(iii) above. If any Lender fails to deliver a notice to 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 Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) shall be reduced on applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Initial Term Loans or Additional Term Loans constituting Refinancing Indebtedness incurred to refinance all or a dollar for dollar basis by portion of the amount of optional prepayments of Initial Term Loans made or Additional Term Loans pursuant to Section 2.5 during such fiscal quarter.
(c6.01(p) Amounts or Replacement Term Loans incurred to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 2.12(b9.02(c) (unless otherwise agreed shall be applied solely to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”each applicable Class of refinanced or replaced Term Loans), in which case the Declined Amount (B) with respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be distributed applied against the remaining scheduled installments of principal due in respect of the Initial Term Loans and Additional Term Loans as directed by the Borrower (or, in the absence of direction from the Borrower, to the prepayment, on a pro rata basis, remaining scheduled amortization payments in respect of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.Initi
Appears in 1 contract
Sources: First Lien Credit Agreement (Hayward Holdings, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) the greater of (x) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning Commencing with the fiscal quarter year of the Borrower ending March December 31, 20092022, there shall be Excess Cash Flowwithin five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall, on if the relevant Borrower’s Excess Cash Flow Application Dateis greater than $5,000,000, apply cause to be prepaid an aggregate principal amount of Term Loans (such aggregate amount, the “Excess Cash Flow Prepayment Amount”) equal to (A) 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of the amount equal to Excess Cash Flow in excess of $5,000,000, if any, for the fiscal year covered by such financial statements (commencing with the fiscal year ending December 31, 2022), minus (B) the sum of (1) all voluntary prepayments (including pursuant to debt buybacks made by the Borrower or any Restricted Subsidiary at a discount to par, with credit given to the cash amount actually paid in respect thereof) of Term Loans and any Incremental Term Loans during such fiscal year and, at the Borrower’s election, all such voluntary prepayments made after the end of such fiscal year but prior to the time that the prepayment required by this clause (b)(i) is made, in each case to the extent such prepayments are not funded with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) or any Cure Amount, (2) all voluntary prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year and, at the Borrower’s election, all such voluntary prepayments made after the end of such fiscal year but prior to the time that the prepayment required by this clause (b)(i) is made, to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments and to the extent such prepayments are not funded with the proceeds of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) or any Cure Amount, (3) without duplication of amounts deducted pursuant to clause (5) below in prior fiscal years, the amount of Capital Expenditures and acquisitions made in cash during such period (and, at the Borrower'’'’s election, all such Capital Expenditures and acquisitions made after the end of such period but prior to the time that the prepayment required by this clause (b)(i) is made), except to the extent that such Capital Expenditures or acquisitions were financed with the proceeds of an incurrence or issuance of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans), (4) without duplication of amounts deducted pursuant to clause (5) below in prior periods, the amount of Investments and acquisitions made during such period (and, at the Borrower'’s election, all such Investments and acquisitions made after the end of such period but prior to the time that the prepayment required by this clause (b)(i) is made) pursuant to Section 7.02 (other than Section 7.02(a) and (d)) except to the extent that such Investments and acquisitions were financed with the proceeds of an incurrence or issuance of long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) and (5) without duplication of amounts deducted from Excess Cash Flow in prior periods, the aggregate consideration required to be paid in cash by the Borrower or any of its Restricted Subsidiaries pursuant to binding contracts (the “Contract Consideration”) entered into prior to or during such period relating to Permitted Acquisitions, Capital Expenditures, Investments or acquisitions to be consummated or made during the period of four consecutive fiscal quarters of the Borrower following the end of such period except to the extent intended to be financed with the proceeds of an incurrence or issuance of other long-term Indebtedness of the Borrower or its Restricted Subsidiaries (other than revolving loans) (provided that to the extent the aggregate amount utilized to finance such Permitted Acquisitions, Capital Expenditures, Investments or acquisitions during such period of four consecutive fiscal quarters is less than the Contract Consideration, the amount of such shortfall, shall be added to the calculation of Excess Cash Flow at the end of such period of four consecutive fiscal quarters) (any transaction referred to in this clause (B) made following the fiscal year end but prior to the making of such prepayment under this clause (b)(i), an “After Year-End Transaction”); provided that (x) the ECF Percentage shall be reduced to 25% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 3.00:1.00 and greater than or equal to 2.50:1.00 and (y) the ECF Percentage shall be reduced to 0% if the First Lien Senior Secured Leverage Ratio for the fiscal year (subject to the following proviso) covered by such financial statements was less than 2.50:1.00; provided, further, to the extent so elected by the Borrower, following the consummation of any After Year-End Transaction, (i) the First Lien Senior Secured Leverage Ratio shall be recalculated giving Pro Forma Effect to such After Year-End Transaction as if such transaction was consummated during the fiscal year of the applicable Excess Cash Flow prepayment and the ECF Percentage for purposes of making such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date determined by reference to such recalculated First Lien Senior Secured Leverage Ratio and (an “ii) such After Year-End Transaction shall not be applied to the calculation of the First Lien Senior Secured Leverage Ratio in connection with the determination of the ECF Percentage for purposes of any subsequent Excess Cash Flow Application Date”) no later than 45 days after each prepayment; provided, further, that for any fiscal quarter end for year, if the first three fiscal quarters and 90 days in the case sum of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of amounts that reduce Excess Cash Flow, Flow under clause (B) of this clause (b)(i) is in excess of the amount of Loans required the Excess Cash Flow Prepayment Amount for such fiscal year, such excess amount shall, at the Borrower’s sole option, be carried over to be repaid pursuant to this clause (b) the next succeeding fiscal year and shall reduce any Excess Cash Flow Prepayment Amount for any such succeeding fiscal quarter shall be reduced year on a dollar for dollar basis basis.
(ii) (A) Subject to Section 2.05(b)(ii)(B), if following the Closing Date (x) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Disposition to a Loan Party, by a Restricted Subsidiary that is not a Loan Party, or pursuant to clause (iii) of the proviso thereto), (e), (f), (g), (j), (k), (n), (o), (p), (q), (r), (s) and (t)), or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall make a prepayment, in accordance with Section 2.05(b)(ii)(C), in an amount equal to an aggregate principal amount of optional prepayments Term Loans equal to 100% (such percentage as it may be reduced as described below, the “Asset Percentage”) of Loans made all such Net Cash Proceeds realized or received; provided that (1) no such prepayment shall be required pursuant to this Section 2.5 2.05(b)(ii)(A) (I) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of their intent to reinvest in accordance with Section 2.05(b)(ii)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing) or (II) until the aggregate amount of Net Cash Proceeds not reinvested in accordance with Section 2.05(b)(ii)(B) within the time periods set forth therein and not previously applied to such a prepayment exceeds $7,500,000 for any single Disposition or series of related Dispositions or $15,000,000 in the aggregate during such fiscal quarter.
year (c) Amounts and thereafter only amounts in excess of such thresholds shall be required to be applied in connection prepaid) and (2) if at the time that any such prepayment would be required, the Borrower or any of its Restricted Subsidiaries are required to offer to repurchase or prepay any Indebtedness that is secured by a Lien ranking pari passu with prepayments made the Liens securing the Term Loans pursuant to Section 2.6 shall the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be appliedoffered to be so repurchased or prepaid, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii)(A) shall be reduced accordingly (provided that (a) the portion of such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Cash Proceeds shall be allocated to the Term Loans in accordance with Section 2.12(bthe terms hereof and (b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may the extent the holders of Other Applicable Indebtedness decline any to have such prepayment (collectivelyindebtedness repurchased or prepaid, the “Declined Amount”), declined amount shall promptly (and in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to any event within five (5) Business Days after the date of such prepayment on rejection) be applied to prepay the amount prepaidTerm Loans in accordance with the terms hereof); provided, further, that (x) the Asset Percentage shall be reduced to 50% if a Eurodollar Loan is prepaid on any day other the First Lien Senior Secured Leverage Ratio for the period of four fiscal quarters most recently then ended was less than or equal to 3.00:1.00 and greater than 2.50:1.00 and (y) the last day Asset Percentage shall be reduced to 0% if the First Lien Senior Secured Leverage Ratio for the period of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant four fiscal quarters most recently then ended was less than or equal to Section 22.50:1.00.
Appears in 1 contract
Sources: Credit Agreement (Holley Inc.)
Mandatory Prepayments. (a) Upon Not later than one Business Day following the consummation receipt of any Net Cash Proceeds of any Asset Sale (other than any Asset Sales permitted pursuant to Section 6.5) after the Classmates IPOClosing Date, an amount equal to: (i) the greater of (x) 50Debtor shall apply 100% of the net cash proceeds Net Cash Proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)respect thereto to prepay outstanding PTSC Debt.
(b) If, for Upon any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis Debt Issuance by the amount Debtor or any of optional prepayments of Loans made is subsidiaries after the Closing Date that is permitted pursuant to Section 2.5 during 6.1(j), the Debtor shall prepay outstanding PTSC Debt in an aggregate principal amount equal to 100% of the Net Cash Proceeds of such fiscal quarterDebt Issuance.
(c) Amounts Not later than one Business Day following the receipt of any Net Cash Proceeds from a Casualty Event, the Debtor shall apply an amount equal to 100% of such Net Cash Proceeds to prepay outstanding PTSC Debt; provided, however, that such proceeds shall not be required to be so applied on such date to the extent that the Net Cash Proceeds from such Casualty Event are used for restoration of the applicable property.
(d) The Debtor shall deliver to AIC at the time of each prepayment required under this Section 2.6, (i) a certificate signed by a Financial Officer of the Debtor setting forth in connection with reasonable detail the calculation of the amount of such prepayment and (ii) to the extent practicable, at least three days' prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of the PTSC Debt (or portion thereof) to be prepaid. All prepayments made pursuant to of the PTSC Debt under this Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2without premium or penalty.
Appears in 1 contract
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater of fifth (x5th) 50% Business Day after the date on which the financial statements with respect to each Fiscal Year of the net cash proceeds received Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending on or around December 31, 2022, the Borrower shall prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower and its Restricted Subsidiaries for the Calculation Period then ended, minus (B) $15,000,000 minus (C) unless otherwise elected by the Borrower (in which case any such amount shall be deducted from the calculation of Excess Cash Flow instead), the aggregate principal amount optionally or voluntarily Prepaid (to the extent permitted under this Agreement and without duplication of the amount thereof applied to reduce the ECF Prepayment Amount in 129590608_2#96809902v9 the prior Fiscal Year) prior to such date of (1) any Initial Term Loans, any other Term Loans, Incremental Equivalent Debt or any Additional Revolving Loans prepaid pursuant to Section 2.11(a), any ABL Loans and any Permitted Senior Secured Debt, and (2) any Replacement Notes, based upon the actual amount of cash paid in connection with the Classmates IPO relevant assignment or purchase, except, in each case, to the extent financed with Long-Term Funded Indebtedness; provided that, in each case, with respect to the ABL Facility, any Incremental Revolving Facility and any Replacement Revolving Facility, to the extent accompanied by a permanent reduction in the relevant commitment, minus (D) all Cash payments in respect of capital expenditures as would be reported in the Borrower’s consolidated statement of cash flows made during such Calculation Period and, at the option of the Borrower, in the case of any Calculation Period, any Cash payments in respect of any such capital expenditures made prior to the date of the Excess Cash Flow payment in respect of such Calculation Period, except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (E) Cash payments made during such Calculation Period (or, at the option of the Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the applicable Excess Cash Flow payment) in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 (including Investments in joint ventures, but excluding Investments in (x) Cash and Cash Equivalents and (y) $30,000,000 the Borrower or any of its Restricted Subsidiaries), except, in each case, to the extent financed with Long-Term Funded Indebtedness, minus (F) unless otherwise elected by the Borrower (in which case any such amount shall be applied on deducted from the calculation of Excess Cash Flow instead), Cash payments made during such Calculation Period (or, at the option of the Borrower (in its sole discretion), made after such Calculation Period and prior to the date of the Classmates IPO toward applicable Excess Cash Flow payment) in respect of Restricted Payments made under Sections 6.04(a)(i), (ii), (iv), (v), (viii)(B), (x), (xi), (xiii) and (xv). Notwithstanding the foregoing, (I) if at the time that any such prepayment would be required, the Borrower (or any other Restricted Subsidiary of the Borrower) is also required to Prepay any Indebtedness that is secured on a pari passu basis with the First Priority Secured Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be so Prepaid, “Other Applicable Indebtedness”) with any portion of the ECF Prepayment Amount, then the Borrower may apply such portion of the ECF Prepayment Amount on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time) to the Prepayment of such Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.11(b)(i) shall be reduced accordingly; provided, that the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the amount of such ECF Prepayment Amount required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such ECF Prepayment Amount shall be allocated to the Term Loans in accordance with the terms hereof and (II) to the extent the holders of Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof (unless such other application is otherwise permitted hereunder).
(ii) No later than the fifth (5th) Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds (in each case, excluding Net Proceeds attributable to ABL Priority Collateral), in each case, in excess of $30,000,000 in the aggregate in any Fiscal Year (in each case, the amount of such excess, the “Subject Proceeds”; provided that, any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds the Net Proceeds of which are less than $20,000,000 with respect to any single event or transaction (or series of related events or transactions) shall not be subject to this Section 2.11(b)(ii)), the Borrower shall apply an amount equal to the Asset Sale Prepayment Percentage of such Subject Proceeds to prepay the outstanding principal amount of Subject Loans in accordance with clause (vi) below; provided, that if, prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) 129590608_2#96809902v9 in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within fifteen (15) months following receipt thereof or (B) the Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 15-month period and the Subject Proceeds are so reinvested within six (6) months after the expiration of such 15-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the outstanding principal amount of Subject Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that (x) if, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to Prepay (or offer to repay or repurchase) any 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 Prepay of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount)); provided, further, that 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 Term Loans in accordance with the terms hereof, and (y) to the extent the holders of the Other Applicable Indebtedness decline to have such Other Applicable Indebtedness Prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof. Notwithstanding anything to the contrary herein or in any other amounts as set forth in Section 2.6(c)Loan Document, the Net Proceeds of any Disposition of any ABL US Priority Collateral shall not be required to be applied to the prepayment of the Initial Term Loans or the 2022 Incremental Term Loans hereunder.
(biii) IfIn the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for except to the extent the relevant Indebtedness constitutes (A) Replacement Term Loans, Replacement Revolving Facility or Replacement Notes incurred to refinance all or a portion of any fiscal quarter Class or Classes of Borrower beginning Term Loans (as determined by the Borrower) in accordance with the fiscal quarter ending March 31requirements of Section 9.02(c)), 2009, there shall be Excess Cash Flowor (B) Incremental Loans or Incremental Equivalent Debt incurred to refinance all or a portion of any Class or Classes of Term Loans to the extent required by the terms thereof to prepay or offer to prepay such Term Loans and such Incremental Loans or Incremental Equivalent Debt do not constitute utilization of the Incremental Cap pursuant to Section 2.22), the Borrower shall, on promptly upon (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or its 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)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary, apply 50% the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, the relevant Net Insurance/Condemnation Proceeds are received by 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 Requirement of Law or conflict with the fiduciary duties of such Excess Cash Flow toward 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 (it being agreed that, solely during the prepayment period within one (1) year following the date such prepayments are required to be made, the Borrower shall, and shall cause the applicable Foreign Subsidiary to, promptly use commercially reasonable efforts to take all actions required by applicable Requirements of Law to permit such repatriation) and if after taking such 129590608_2#96809902v9 actions, the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above within one (1) year following the date such prepayments are required to be made, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)(A)) or the Borrower or another subsidiary may, at its option, apply to such repayment an equivalent amount with the Foreign Subsidiary not repatriating the actual Subject Proceeds or Excess Cash Flow; and
(B) if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower of any amounts required to mandatorily prepay the Initial Term Loans and other Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in any Parent Company, Holdings, the Borrower or any Restricted Subsidiary incurring material Tax liabilities (including any material withholding Tax) or material adverse Tax consequences (such amount, a “Restricted Amount”), as reasonably determined by the Borrower, the amount the Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as the Restricted Amount may be repatriated (or otherwise distributed) to the Borrower without the incurrence of such material Tax liability or material adverse Tax consequences (each, as determined in good faith by the Borrower); provided, that to the extent that the repatriation (or other intercompany distribution) of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have a material Tax liability or material adverse Tax consequences within one (1) year following the date such prepayments are required to be made, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the repayment of the Initial Term Loans and Additional Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv)(B));
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Initial Term Loans and Additional Term Loans required to be repaid made by the Borrower pursuant to this clause Section 2.11(b), to decline all (bbut not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”); provided that (A) to the extent that any such prepayment is declined, the remaining amount thereof may be retained by the Borrower and (B) for the avoidance of doubt, no Lender may reject any fiscal quarter prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with Indebtedness described in clauses (A) or (B) of Section 2.11(b)(iii) above. If any Lender fails to deliver a notice to 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 Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Initial Term Loans and Additional Term Loans.
(vi) Except as may otherwise be set forth in any amendment to this Agreement in connection with any Additional Term Loan, (A) each prepayment of Initial Term Loans and other Term Loans required pursuant to this Section 2.11(b) shall be reduced on applied ratably to each Class of Term Loans (based upon the then outstanding principal amounts of the respective Classes of Term Loans) (provided that any prepayment of Initial Term Loans or Additional Term Loans constituting Refinancing Indebtedness incurred to refinance all or a dollar for dollar basis by portion of the amount of optional prepayments of Initial Term Loans made or Additional Term Loans pursuant to Section 2.5 during such fiscal quarter.
(c6.01(p) Amounts or Replacement Term Loans incurred to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the refinance Initial Term Loans or Additional Term Loans in accordance with the requirements of Section 2.12(b9.02(c) (unless otherwise agreed shall be applied solely to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”each applicable Class of refinanced or 129590608_2#96809902v9 replaced Term Loans), in which case the Declined Amount (B) with respect to each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(i), (ii) or (iii) shall be distributed to applied against the prepayment, on a pro rata basis, remaining scheduled installments of principal due in respect of the Initial Term Loans held and Additional Term Loans as directed by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.(
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Sources: First Lien Credit Agreement (Hayward Holdings, Inc.)
Mandatory Prepayments. (a) Upon On the consummation next occurring Payment Date following the date on which Lender actually receives any Net Proceeds, 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, Borrower shall prepay or authorize Lender to apply such Net Proceeds as a prepayment of all or a portion of the Classmates IPO, outstanding principal balance of the Loan together with accrued interest and any other sums due hereunder in an amount equal to: to one hundred percent (i100%) of such Net Proceeds; provided, however, if an Event of Default has occurred and is continuing, Lender may apply such Net Proceeds to the greater Debt (until paid in full) in any order or priority in its sole discretion. Other than following an Event of (x) 50% of the net cash proceeds received by the Borrower Default, no Spread Maintenance Payment or Prepayment Premium shall be due in connection with any prepayment made pursuant to this Section 2.4.2. The Release Amount with respect to the Classmates IPO and (y) $30,000,000 affected Individual Property shall be applied on reduced in an amount equal to the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% principal portion of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)prepayment. Each Upon such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flowprepayment, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter principal due each month shall be reduced on recomputed based upon a dollar for dollar basis by level payment of principal and interest based upon the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment aggregate outstanding principal balances of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectivelyLoan, the “Declined Amount”), in which case Mezzanine Loan and the Declined Amount shall be distributed to the Junior Mezzanine Loan remaining following such prepayment, on a pro rata basis, debt service constant equal to seven and one-quarter percent (7.25%) and an amortization schedule of three hundred (300) months less the number of months from the first (1st) day of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of calendar month following the Loans under Section 2.6 shall be accompanied by accrued interest Closing Date to the date of such prepayment prepayment. Amortization shall be calculated based on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any thirty (30) day other than the last month and a three hundred sixty (360) day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2year accrual period.
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Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) Within ten (10) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the greater related Compliance Certificate has been delivered pursuant to Section 6.02(a), commencing with the fiscal year ending December 31, 2021, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to (xA) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and (y) $30,000,000 shall such percentage as it may be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts reduced as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowdescribed below, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application DateECF Percentage”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, if any, for the fiscal year covered by such financial statements, if the extent Excess Cash Flow for such period exceeds $5,000,000 and then, only to the extent of the amount in excess of $5,000,000, minus at the Borrower’s option, (B) the sum of (i) (x) all voluntary prepayments of Term Loans (or any Credit Agreement Refinancing Indebtedness in respect thereof) during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the Borrower’s option, following the last day of such fiscal year and on or prior to such required to be repaid pursuant to this clause prepayment date), (by) for any fiscal quarter shall be reduced voluntary prepayments of other Indebtedness permitted hereunder that is secured on a dollar pari passu basis with the Secured Obligations (including, in the case of clauses (x) and (y), any debt buyback or prepayments at a discount to par under such facilities, with credit given for dollar basis the actual amount of the cash payment) and (ii) all voluntary prepayments of Revolving Credit Loans and Swing Line Loans (or any Credit Agreement Refinancing Indebtedness in respect thereof) during such fiscal year (and, without duplication of any deduction with respect to any other fiscal year, at the Borrower’s option, following the last day of such fiscal year and on or prior to such required prepayment date) to the extent the Revolving Credit Commitments are permanently reduced by the amount of optional prepayments of Loans made such payments or to the extent drawn to account for any additional OID or upfront fees that are implemented pursuant to Section 2.5 during such fiscal quarter.
the “market flex” provisions of the Fee Letter (cor, in each case, any Credit Agreement Refinancing Indebtedness in respect thereof), in the case of each of the immediately preceding clauses (i) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be appliedand (ii), to the extent such prepayments are not funded with the proceeds of Indebtedness; provided that (x) the ECF Percentage shall be 25% if the Consolidated First Lien Secured Leverage Ratio (after giving effect to any prepayment of the Loans after such year as contemplated above in accordance with Section 2.12(bclause (B)) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, as of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable theretofiscal year covered by such financial statements was less than 2.30:1.00 and greater than or equal to 1.80:1.00 and (y) the ECF Percentage shall be 0% if the Consolidated First Lien Secured Leverage Ratio (after giving effect to any prepayment of Loans after such year as contemplated above in clause (B)) as of the last day of the fiscal year covered by such financial statements was less than 1.80:1.00. (ii) (A) Subject to Section 2.05(b)(ii)(B), and any Customary Intercreditor Agreement, if following the Closing Date (x) Holdings, the Borrower or any Restricted Subsidiary consummates any non-ordinary course sale, transfer or other disposition of property or assets permitted by Section 7.05(a)(ii) and clauses (7) though (28) of the definition of Asset Disposition, or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by Holdings, the Borrower or such Restricted Subsidiary of Net Available Cash in excess of $5,000,000 (and then, only to the extent of the amount in excess of $5,000,000) in the case of each of, a single Asset Disposition or Casualty Event or series of related Asset Dispositions or Casualty Events, the Borrower shall also pay any amounts owing make a prepayment, in accordance with Section 2.05(b)(ii)(C), of an aggregate principal amount of Term Loans equal to such Net Available Cash (the “Applicable Proceeds”) realized or received; provided that no such prepayment shall be required pursuant to this Section 2.2.05(b)(ii)(A) (I) with respect to such portion of such Net Available Cash that the Borrower intends to reinvest in accordance with Section 2.05(b)(ii)(B), -111- #96501157v12
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Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) No later than the greater fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Lead Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending September 30, 2022, the Lead Borrower shall prepay the outstanding principal amount of Initial Term Loans in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount equal to (A) the ECF Percentage of Excess Cash Flow of the Lead Borrower and its Restricted Subsidiaries for the Fiscal Year then ended, minus (B) at the option of the Lead Borrower, the aggregate principal amount of (x) any Term Loans, Revolving Loans or Additional Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date, (y) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction), in each case under this clause (y) prior to such date and based upon the actual amount of Cash paid in connection with the relevant assignment and (z) the amount of any voluntary prepayments, voluntary repurchases or voluntary redemptions of any Other Indebtedness that is secured by the Collateral on a pari passu basis with the Obligations prior to such date, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans and/or Additional Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of the Lead Borrower or its Restricted Subsidiaries), minus (C) without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, all Cash payments in respect of capital expenditures made during such period and, at the option of the Lead Borrower, any Cash payments in respect of any such capital expenditures made after such period and prior to the date of the applicable Excess Cash Flow payment (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)), minus (D) Cash payments made during such period in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries), or, at the option of the Lead Borrower, any Cash payments in respect of Permitted Acquisitions and other Investments permitted by Section 6.06 or otherwise consented to by the Required Lenders (other than Investments in (x) Cash and Cash Equivalents and (y) the Lead Borrower or any of its Restricted Subsidiaries) made after such period and prior to the date of the applicable Excess Cash Flow payment (except, in each case, to the extent financed with long-term Indebtedness (other than revolving Indebtedness)) (such amount, that is required to be prepaid pursuant to this Section 2.11(b)(i), after giving effect to such calculation in clauses (A) through (D), the “Required ECF Amount”); provided that, (1) no prepayment under this Section 2.11(b)(i) shall be required to the extent that the Required ECF Amount would not exceed the greater of $35,000,000 and 5% of Consolidated Adjusted EBITDA of the last day of the most recently ended Test Period (and only the amount in excess of such threshold shall be required to be prepaid under this Section 2.11(b)(i)), (2) at the Lead Borrower’s option, the amount by which the threshold specified in clause (1) exceeds the Required ECF Amount may be applied to any subsequent Fiscal Year to reduce the Required ECF Amount for such fiscal year on a dollar-for-dollar basis; provided, further, that if at the time any such prepayment would be required, the Lead Borrower (or any other Loan Party) is also required to, or is required to offer to, prepay or repurchase any Indebtedness permitted hereunder to be secured on a pari passu basis with the Obligations pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be offered to be so repaid or repurchased, the “Other Applicable Indebtedness”) with any portion of the amount required to be prepaid pursuant to this Section 2.11(b)(i), then the Lead Borrower may apply such portion of such prepayment amount on a pro rata basis to the prepayment of the Initial Term Loans and the relevant Other Applicable Indebtedness at such time) to the prepayment of the Initial Term Loans and the relevant Other Applicable Indebtedness, (and such amounts so offered, in any case, shall no longer be required to be applied to prepay the Initial Term Loans).
(ii) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale by the Lead Borrower or the other Loan Parties, in each case, in excess of the greater of $70,000,000 or 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, the Lead Borrower shall apply an amount equal to 100% (the “Prepayment Percentage”) of the Net Proceeds received with respect thereto in excess of such threshold (the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans in accordance with clause (vi) below; provided that if, prior to the date any such prepayment is required to be made, the Lead Borrower decides to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lead Borrower or any of its subsidiaries (including capital expenditures and Permitted Acquisitions or other Investments), then the Lead Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Subject Proceeds to the extent (A) the Subject Proceeds are so reinvested within 18 months following receipt thereof, (B) the Subject Proceeds are used to prepay Indebtedness incurred to fund amounts and/or replenish cash so reinvested in assets used or useful in the business (other than Cash or Cash Equivalents) of the Lead Borrower or any of its subsidiaries (including capital expenditures and Permitted Acquisitions or other Investments) during the six month period prior to receipt of such Net Proceeds or (C) the Lead Borrower or any of its subsidiaries has committed to so reinvest the Subject Proceeds during such 18-month period and the Subject Proceeds are so reinvested within six months after the expiration of such 18-month period; provided, however, that if the Subject Proceeds have not been so reinvested prior to the expiration of the applicable period, the Lead Borrower shall promptly prepay the outstanding principal amount of Initial Term Loans with the Subject Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided, further, that if, at the time that any such prepayment would be required hereunder, the Lead Borrower or any of its Restricted Subsidiaries is required to, or required to offer to, repay or repurchase any Other Applicable Indebtedness, then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Initial Term Loans and to the repurchase or repayment of such Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Initial Term Loans, Additional Term Loans and Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time (and such amounts so offered, in any case, shall no longer be required to be applied to prepay the Initial Term Loans); provided, further, that if at any time during the 18 month reinvestment period specified above (or 24 month reinvestment period, if applicable), (I) the First Lien Net Leverage Ratio calculated on a Pro Forma Basis as of the last day of any Test Period ending during such period (giving pro forma effect to the payment required hereby) is less than or equal to 2.75 to 1.00, but greater than 2.25 to 1.00, the Prepayment Percentage shall be reduced to 50%, and only 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO Subject Proceeds that are not reinvested will be required to be prepaid pursuant to this Section 2.11(b)(ii) and (yII) $30,000,000 if the First Lien Net Leverage Ratio calculated on a Pro Forma Basis as of the last day of any Test Period ending during such period (giving pro forma effect to the payment required hereby) is less than or equal to 2.25 to 1.00, the Prepayment Percentage shall be applied on the date of the Classmates IPO toward the prepayment of the Loans reduced to 0%, and other amounts as set forth in no Subject Proceeds will be required to be prepaid pursuant to this Section 2.6(c2.11(b)(ii).
(biii) IfIn the event that the Lead Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Lead Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 6.01, for any fiscal quarter except to the extent the relevant Indebtedness constitutes Refinancing Indebtedness incurred to refinance all or a portion of Borrower beginning the Term Loans pursuant to Section 6.01(p) or Replacement Term Loans incurred to refinance Term Loans in accordance with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowrequirements of Section 9.02(c)), the Lead Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Lead Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of Term Loans in accordance with clause (vi) below.
(iv) Notwithstanding anything in this Section 2.11(b) to the contrary, (A) the Lead Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow Application Dateis generated by any Foreign Subsidiary or the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, apply 50% as the case may be, for so long as the repatriation to the Lead Borrower of any such amount would be prohibited under any Requirement of Law or conflict with the fiduciary duties of such Excess Cash Flow toward 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 (the prepayment Lead Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation); it being understood that once the repatriation of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of relevant affected Subject Proceeds or Excess Cash Flow, as the case may be, 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 could reasonably be expected to result in, a material risk of personal or criminal liability for the Persons described above, the relevant Foreign Subsidiary will promptly repatriate the relevant Subject Proceeds or Excess Cash Flow, as the case may be, and the repatriated Subject Proceeds or Excess Cash Flow, as the case may be, 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 Initial Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)) and (B) if the Lead Borrower determines in good faith that the repatriation to the Lead Borrower of any amounts required to mandatorily prepay the Term Loans pursuant to Section 2.11(b)(i) or (ii) above would result in material and adverse tax consequences, 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 Lead Borrower, the amount the Lead Borrower shall be required to mandatorily prepay pursuant to Section 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount until such time as it may repatriate to the Lead Borrower the Restricted Amount without incurring such material and adverse tax liability; provided that, if within 365 days of such determination, to the extent that the repatriation of any Subject Proceeds or Excess Cash Flow from the relevant Foreign Subsidiary would no longer have an adverse tax consequence, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable, not previously applied pursuant to preceding clause (B), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above (without regard to this clause (iv));
(v) Each Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be repaid made by the Lead Borrower pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied2.11(b), to the prepayment decline all (but not a portion) of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined Amount”), in which case the Declined Amount shall be distributed solely to the prepayment, on a pro rata basis, extent not applied to any other Indebtedness of the Loans held by Lenders that have elected to accept such Declined Amounts. Each Lead Borrower or its subsidiaries as a mandatory prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; providedIndebtedness, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.the
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Mandatory Prepayments. (a) Upon All Extraordinary Proceeds received by the consummation Administrative Agent or any Borrower Entity shall be applied to prepay the then outstanding Acquisition Loans in accordance with the Deposit Account Agreement, and after all Acquisition Loans have been prepaid in full, applied to prepay then outstanding Working Capital Loans in accordance with the Deposit Account Agreement. Any prepayment of Working Capital Loans required by this Section 2.07(a) shall automatically reduce pro rata the Classmates IPO, amount of Working Capital Loan Commitments by an amount equal to: (i) to the greater prepayment so required. Contemporaneously with any reduction of (x) 50% of the net cash proceeds received Working Capital Commitments required by this Section 2.07(a), then the Borrower in connection shall cash collateralize with the Classmates IPO and Administrative Agent the difference between (y) $30,000,000 any ConEd Letter of Credit Exposure existing at such time, less (z) the aggregate amount of the Working Capital Loan Commitments existing after the application of the terms of this Section 2.07(a), until such time as such ConEd Letter of Credit Exposure no longer exists. Nothing in this Section 2.07(a) shall be applied on the date deemed to imply that any of the Classmates IPO toward the prepayment activities or actions described in clauses (ii) or (iii) of the Loans and definition of Extraordinary Proceeds are permitted under this Agreement other amounts than as specifically set forth in Section 2.6(c)this Agreement.
(b) IfIn addition to the foregoing, for any fiscal quarter of Borrower beginning with until the fiscal quarter ending March 31, 2009, there shall be Excess Cash FlowFinal Maturity Date, the Borrower shallshall prepay the Acquisition Loans, on promptly after each Semi-Annual Date to the relevant extent of Excess Cash Flow Application Dateas determined as of each such Semi-Annual Date in the percentage listed below, apply based on the applicable Debt Service Coverage Ratio calculated on a trailing 12-month basis: Debt Service Coverage Ratio Amount of Mandatory Prepayment --------------------------- ------------------------------ > 2.50 50% of such Excess Cash Flow toward the prepayment < or equal to 2.50 but > or equal to 2.00 75% of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition < 2.0 100% of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Mandatory Prepayments. Any prepayment under this Section 2.3 shall be applied first to any expenses to which the Purchaser may be entitled, second to accrued interest, third to any applicable Prepayment Fee, fourth to the principal (including capitalized PIK Interest evidenced by the PIK Notes), in the inverse order of maturities, and fifth to any damages to which any Purchaser may be entitled. The amount of any such mandatory prepayment may not be reborrowed by the Company. The Company shall make mandatory prepayments to the Purchaser of the original principal amount of the Priority Senior Subordinated Notes in each of the following circumstances:
(a) Upon If during any fiscal year after the consummation Senior Debt is paid in full and after all commitments of the Classmates IPOSenior Lender with respect thereto have been terminated, Parent or the Company shall sell or otherwise dispose of (other than as permitted by Section 6.8 or Section 7.3) any property or properties in excess of five percent (5%) of its total assets (including as a result of a Casualty Event (to the extent the net cash proceeds therefrom are not subsequently applied or committed to apply toward replacement, restoration, rebuilding or repair of the damaged property within ninety (90) days after the receipt of such net cash proceeds)), then the Company shall prepay the Priority Senior Subordinated Notes in an amount equal to: to the lesser of (i) the greater of (x) 50% of the aggregate net cash proceeds received by of such sale or other disposition (minus the Borrower in connection with cost of any replacement assets or properties purchased within ninety (90) days either before or after such sale) or (ii) the Classmates IPO aggregate amount of all Priority Senior Subordinated Obligations (including any applicable Prepayment Fee) such prepayment and premium to be made within ten (y10) $30,000,000 shall be applied on the date Business Days of the Classmates IPO toward the prepayment receipt of the Loans and other amounts as set forth in Section 2.6(c)such net proceeds.
(b) IfIn the event of any sale or other disposition of all or substantially all of the stock or assets of Parent or the Company in a single transaction or series of transactions or a Casualty Event (to the extent not subsequently applied or committed to apply toward replacement, for any fiscal quarter restoration, rebuilding or repair of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowdamaged property within 90 days after the receipt of such net cash proceeds), the Borrower Company shall, on after the relevant Excess Cash Flow Application DateSenior Debt has been paid in full and after all commitments of the Senior Lender with respect thereto have been terminated, apply 50% prepay the Priority Senior Subordinated Notes in an amount equal to the lesser of (i) the aggregate remaining net cash proceeds of such Excess Cash Flow toward sales or dispositions (minus the prepayment cost of any replacement assets or properties purchased within ninety (90) days either before or after such sale) or (ii) the Loans and other amounts as set forth in Section 2.6(caggregate amount of all Priority Senior Subordinated Obligations (including any applicable Prepayment Fees). Each , such prepayment shall to be made on a date within ten (an “Excess Cash Flow Application Date”10) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case Business Days of the fourth quarter of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date receipt of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2net proceeds.
Appears in 1 contract
Mandatory Prepayments. (ai) Upon No later than fifteen (15) days after the consummation date on which the financial statements with respect to each Fiscal Year of the Classmates IPOBorrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2026, the Borrower shall prepay the outstanding principal amount of Term Loans then subject to ratable prepayment requirements in accordance with clause (viii) of this Section 2.08(b) below in an aggregate principal amount equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow, minus, (B) without duplication of amounts reducing Excess Cash Flow, at the option of the Borrower, the aggregate principal amount of any Term Loans or Revolving Loans voluntarily prepaid prior to the date of prepayment pursuant to this Section 2.08(b)(i), in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.08(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the Revolving Credit Commitment, and in the case of all such prepayments, solely to the extent that such prepayments were not financed with the proceeds of other Indebtedness that does not constitute revolving Indebtedness) of the Borrower or its Subsidiaries.
(ii) Subject to Section 2.08(b)(viii), no later than five (5) Business Days following the receipt of Net Proceeds in respect of any Prepayment Asset Sale or Net Insurance/Condemnation Proceeds, in each case, in excess of $4,000,000 in aggregate for any Fiscal Year, the Borrower shall apply an amount equal to: to the Required Asset Sale/Insurance Prepayment Percentage of the Net Proceeds or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto in excess of such threshold (icollectively, the “Subject Proceeds”) to prepay the greater outstanding principal amount of Initial Term Loans and Incremental Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (viii) below; provided that if prior to the date any such prepayment is required to be made, in consultation with, and subject to the approval of, the Required Lenders, the Borrower notifies the Administrative Agent and the Required Lenders of its intention to reinvest the Subject Proceeds in assets used or useful in the business (other than Cash or Cash Equivalents) of the Borrower or any of its Subsidiaries, then so long as no Event of Default is then continuing, 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) 50% of the net cash proceeds received by the Borrower in connection with the Classmates IPO and Subject Proceeds are so reinvested within 12 months following receipt thereof, or (y) $30,000,000 shall be applied on the date Borrower or any of its Subsidiaries has committed to so reinvest the Subject Proceeds during such 12-month period and the Subject Proceeds are so reinvested within 180 days after the expiration of such 12-month period; it being understood that if the Subject Proceeds have not been so reinvested prior to the expiration of the Classmates IPO toward applicable period, the prepayment Borrower shall promptly prepay the outstanding principal amount of the Subject Loans and other amounts with the Subject Proceeds not so reinvested as set forth in Section 2.6(cabove (without regard to the immediately preceding proviso).
(biii) IfSubject to Section 2.09(d), for in the event that the Borrower or any fiscal quarter of its Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flowor any of its Subsidiaries that is not permitted under Section 6.01, the Borrower shall, on substantially simultaneously with (and in any event not later than the next succeeding Business Day) the receipt of such Net Proceeds by the Borrower or its applicable Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Term Loans in accordance with clause (viii) below;
(iv) Notwithstanding anything in this Section 2.08(b) to the contrary if the Borrower determines in good faith that the repatriation to the Borrower of any amount of the relevant Excess Cash Flow Application Dategenerated by any Foreign Subsidiary, apply 50% the Net Proceeds of the relevant Prepayment Asset Sale consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds received by any Foreign Subsidiary, as the case may be, that would otherwise be required to be paid pursuant to Section 2.08(b)(i) or (ii) above would be prohibited 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 or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (such amount, a “Restricted Foreign Subsidiary Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.08(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Foreign Subsidiary Amount (provided that for the avoidance of doubt, no Restricted Foreign Subsidiary Amount shall be included in the calculation of Retained Excess Cash Flow toward Amount); it being understood that if the prepayment repatriation of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “relevant affected Excess Cash Flow Application Date”) or Subject Proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no later than 45 days after each fiscal quarter end longer conflict with the fiduciary duties of such director, or result in, or would reasonably be expected to result in, a material risk of personal or criminal liability for the first three fiscal quarters and 90 Persons described above, in either case, within 365 days in following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will to the extent then available promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, will be applied promptly after such repatriation (net of any Taxes payable or reserved against as a result thereof) to the repayment of the fourth quarter Term Loans pursuant to this Section 2.08(b) to the extent required herein (without regard to this clause (iv)),
(v) if the Borrower determines in good faith in consultation with the Required Lenders that the repatriation to the Borrower or any dividend or other distribution, as applicable, to the Borrower or any Subsidiary of any fiscal year end. Notwithstanding amounts required to mandatorily prepay the foregoing and without duplication under Term Loans pursuant to Section 2.08(b)(i) or (ii) above would result in a material Tax liability (including any withholding Tax) (such amount, a “Restricted Tax Amount”), the definition amount that the Borrower shall be required to mandatorily prepay pursuant to Section 2.08(b)(i) or (ii), as applicable, shall be reduced by the Restricted Tax Amount; provided that solely to the extent that within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, such repatriation or dividend or other distribution, as applicable, of the relevant Subject Proceeds or Excess Cash Flow to the Borrower would no longer result in a material Tax liability (including any withholding Tax), to the extent then available the Subject Proceeds or Excess Cash Flow, as applicable, will be promptly repatriated or paid as a dividend or otherwise distributed to the amount Borrower and will be applied promptly thereafter (net of additional Taxes payable or reserved against as a result of such repatriation, dividend or other distribution, as applicable) to the repayment of the Term Loans pursuant to this Section 2.08(b) to the extent required to be repaid pursuant herein (without regard to this clause (bv));
(vi) for Borrower shall use commercially reasonable efforts to provide written notice to the Administrative Agent at least three Business Days prior to any fiscal quarter prepayment made under this Section 2.08(b) and upon receipt of any such notice the Administrative Agent shall promptly notify the Term Lenders of ▇▇▇▇▇▇▇▇’s intent to prepay under this Section 2.08(b). Any Term Lender may elect, by written notice to the Administrative Agent in the manner and no later than the time specified by the Administrative Agent (which shall be reduced on a dollar for dollar basis by no later than one Business Day prior to the amount date of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarter.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be appliedthe proposed prepayment), to the prepayment decline all (but not a portion) of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any its Applicable Percentage of such prepayment (collectivelysuch declined amounts, the “Declined AmountProceeds”), in which case such Declined Proceeds may be retained by the Declined Amount Borrower in its sole discretion. If any Lender fails to deliver a notice to 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) If the Spanish Scoopers Acquisition is not consummated on or prior to the date that is sixty days after the Closing Date (or such later date approved in writing by the Required Lenders) or if the Closing Date Escrow Account Agreement is terminated prior to the consummation of the Spanish Scoopers Acquisition, the Borrower shall prepay on such date, $50,000,000 of the outstanding principal amount of Initial Term Loans subject to the ratable prepayment requirements in accordance with clause (viii) below.
(viii) Except as otherwise provided in any Incremental Facility Amendment, each prepayment of Term Loans pursuant to this Section 2.08(b) shall be distributed applied ratably to each Class of Term Loans then outstanding. With respect to each Class of Term Loans, all accepted prepayments under this Section 2.08(b) shall be applied against the remaining scheduled installments of principal due in respect of such Term Loans pro rata, and each such prepayment shall be paid to the prepayment, on a pro rata basis, Term Lenders in accordance with their respective Applicable Percentage of the applicable Class. The amount of such mandatory prepayments shall be applied first to the then outstanding Term Loans held that are ABR Loans and then to the then outstanding Term Loans that are SOFR Loans in a manner that minimizes the amount of any payments required to be made by Lenders the Borrower pursuant to Section 2.13.
(A) In the event that have elected the Revolving Credit Exposure exceeds 100% of the amount of the Revolving Credit Commitment then in effect, the Borrower shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans in an aggregate amount sufficient to accept reduce such Declined Amounts. Each Revolving Credit Exposure as of the date of such payment to an amount not to exceed the Revolving Credit Commitment then in effect by prepaying Revolving Loans.
(B) [reserved]
(C) Subject to Section 2.06(d), each prepayment of the Loans any Revolving Borrowing under this Section 2.6 2.08(b)(viii) shall be paid to the Revolving Lenders in accordance with their respective Applicable Percentages.
(x) no later than five (5) Business Days following the date on which the Borrower or any of its Subsidiaries receives any Extraordinary Receipts, the Borrower shall prepay an amount equal to one hundred percent (100%) of the Net Proceeds of such Extraordinary Receipts.
(xi) Prepayments made under this Section 2.08(b) shall be (A) accompanied by accrued interest to the date of such prepayment on the amount prepaid; providedas required by Section 2.10, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant (B) subject to Section 22.13 and (C) in the case of prepayments of Initial Term Loans under clauses (ii), (iii) and (ix) above, subject to Section 2.09(d), but shall otherwise be without premium or penalty.
Appears in 1 contract
Sources: Credit Agreement (Bridger Aerospace Group Holdings, Inc.)
Mandatory Prepayments. (a) Upon the consummation of the Classmates IPO, an amount equal to: (i) In the greater of event that (x) at any time, the Revolver Usage on such date exceeds the Borrowing Base reflected in the Borrowing Base Certificate most recently delivered by Borrowers to Agent, whether delivered pursuant to Schedule 5.2 or otherwise or (y) at any time, the Revolver Usage on such date exceeds the Maximum Revolver Amount, in each case Borrowers shall, within three (3) Business Days prepay the Obligations in an aggregate amount equal to the amount of such excess in accordance with Section 2.4(f). On or prior to the date of any mandatory prepayment required to be made pursuant to this Section 2.4(e)(i), Borrowers shall provide written notice to Agent of the amount of such prepayment, the Loans to which the same will be applied, and calculations therefor (in reasonable detail).
(ii) In the event that (x) the Loan Parties or any of their Subsidiaries receive any Net Cash Proceeds in any fiscal year from Non-Exclusive Licenses made pursuant to clause (d) of the definition of “Permitted Dispositions” (or, without duplication, clause (d) of the definition of “Permitted Dispositions” under the 2017 Term Facility, Section 4.16(b) of the 2017 Indenture or any provision in any document governing any permitted Refinancing Indebtedness of any of the foregoing requiring a mandatory prepayment or redemption or mandatory offer to prepay or redeem based on receipt of proceeds from any non-exclusive license) and (y) if, at any time, the accumulated Excess Proceeds equal or exceed $5,000,000, then a prepayment amount in accordance with the applicable NEL Ratio shall be required to be applied in accordance with clause (iv) below. “NEL Ratio” means (A) 50% of the net cash proceeds aggregate Net Cash Proceeds (to the extent constituting Excess Proceeds) of up to $5,000,000 received by the Borrower Loan Parties and their Subsidiaries in connection with the Classmates IPO and (y) $30,000,000 shall be applied on the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c).
(b) If, for any fiscal quarter of Borrower beginning with the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter of any fiscal year end. Notwithstanding from Non-Exclusive Licenses, and (B) 75% of the foregoing aggregate Net Cash Proceeds (to the extent constituting Excess Proceeds) in excess of $5,000,000 received by Loan Parties and without duplication under the definition of Excess Cash Flow, the amount of Loans required to be repaid pursuant to this clause (b) for their Subsidiaries in any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during such fiscal quarteryear from Non-Exclusive Licenses.
(c) Amounts to be applied in connection with prepayments made pursuant to Section 2.6 shall be applied, to the prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Sources: Credit Agreement (Pernix Therapeutics Holdings, Inc.)
Mandatory Prepayments. (a) Upon Subject to clauses (c) and (d) below, on each occasion that the consummation Company or any Subsidiary receives any Net Cash Proceeds in respect of the Classmates IPOany Prepayment Event, an amount equal to: (i) prior to the greater Borrowing Date, unused outstanding Term Loan Commitments shall be reduced on a Dollar-for-Dollar basis (or, in the case of a Commitment Reduction Event, on a Dollar-for-Dollar basis only on the portion of Net Cash Proceeds exceeding $100,000,000) on the date of receipt by the Company or its Subsidiaries of any such Net Cash Proceeds and (ii) on and after the Borrowing Date, outstanding Loans shall be prepaid on a Dollar for Dollar basis by the Company or its Subsidiaries promptly (and in any event within five Business Days) with any such Net Cash Proceeds; provided that notwithstanding the foregoing, (i) prior to the Borrowing Date, in no event shall such Net Cash Proceeds of a Prepayment Event be required to reduce the Term Loan Commitments to the extent that such Net Cash Proceeds are required to be applied to prepay Debt outstanding under the Rexnord Credit Agreement and (ii) on and after the Borrowing Date, such Net Cash Proceeds of a Prepayment Event may be applied towards the prepayment or purchase of other Debt having the same (including with respect to priority) credit support package (whether in terms of security and/or guarantees) as the Loans to the extent the documentation governing such Debt requires such a prepayment or purchase (or commitment reduction) with Net Cash Proceeds in respect of such Prepayment Event, in each case in an amount not to exceed the product of (x) 50% the amount of the net cash proceeds received by the Borrower in connection with the Classmates IPO such Net Cash Proceeds and (y) $30,000,000 a fraction, the numerator of which is the outstanding principal amount of such other Debt (or committed amounts) and the denominator of which is the aggregate outstanding principal amount of Loans and all such other Debt (or committed amounts). Subject to clause (b) below, each prepayment of outstanding Loans required to be made pursuant to this paragraph shall be applied on allocated pro rata among the date of the Classmates IPO toward the prepayment of the Loans and other amounts as set forth in Section 2.6(c)Loans.
(b) If, for any fiscal quarter of Borrower beginning with The Company shall notify the fiscal quarter ending March 31, 2009, there shall be Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply 50% of such Excess Cash Flow toward the prepayment of the Loans and other amounts as set forth Administrative Agent in Section 2.6(c). Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than 45 days after each fiscal quarter end for the first three fiscal quarters and 90 days in the case of the fourth quarter writing of any fiscal year end. Notwithstanding the foregoing and without duplication under the definition of Excess Cash Flow, the amount mandatory prepayment of Loans required to be repaid pursuant to this clause (b) for any fiscal quarter shall be reduced on a dollar for dollar basis by the amount of optional prepayments of Loans made pursuant to Section 2.5 during 6.2.4 at least three Business Days prior to the date of such fiscal quarterprepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender holding Loans of the contents of the Company’s prepayment notice and of such Lender’s pro rata share of the prepayment. Each Lender may reject all or a portion of its pro rata share of any mandatory prepayment (such declined amounts, the “Declined Proceeds” and such rejecting Lenders, the “Declining Proceeds Lenders”) of Loans required to be made pursuant to Section 6.2.4(a) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 4:00 p.m. (New York City time) one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of 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 Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans. Any Declined Proceeds remaining thereafter, first, if there are Loans outstanding, shall be offered to the Lenders (other than any Declining Proceeds Lender) on a pro rata basis (based on their outstanding Loans), which Lenders may reject all or a portion of their pro rata shares of such Declined Proceeds, second, [reserved], and, third, to the extent any Declined Proceeds remain thereafter, shall not be subject to mandatory prepayment hereunder.
(c) Amounts 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 (prior to the Borrowing Date) a Commitment Reduction Event described in clause (a) of the definition thereof or (on or after the Borrowing Date) an Asset Sale, in each case setting forth the Company’s intent to reinvest such proceeds in productive assets or businesses, including in Permitted Acquisitions or capital expenditures, within 365 days of receipt of such proceeds (the “Investment Period”) and (y) in respect of an Asset Sale, 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 applied in connection with prepayments made Net Cash Proceeds.
(d) The Company shall not be required to prepay by any amount that would otherwise be required pursuant to Section 2.6 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 reasonably determined by the Company; provided that upon the Company obtaining knowledge that such circumstance in clause (i) and/or clause (ii), as applicable, ceases to apply, such Net Cash Proceeds shall be applied, to the deemed received for purposes of clause (a) above and any prepayment of the Loans in accordance with Section 2.12(b) (unless otherwise agreed to in writing by and among Lenders); (provided that any Lender may decline any such prepayment (collectively, the “Declined Amount”), in which case the Declined Amount shall be distributed to the prepayment, on a pro rata basis, of the Loans held by Lenders that have elected to accept such Declined Amounts. Each prepayment of the Loans under Section 2.6 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of the Interest Period or reduction requirements applicable thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.
Appears in 1 contract
Sources: Credit Agreement (Rexnord Corp)