Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases. (b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases. (c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence. (d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date. (e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date. (f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of Promptly (but in any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent event within three (3) Business Days Days) following receipt by the Borrower or any of its Subsidiaries of any cash proceeds of any sale or disposition by the Borrower any of its Subsidiaries of any of its assets, or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, in each case, in an aggregate amount in excess of $1,000,000 after the day of receipt by a Group Member of Closing Date, the Net Cash Proceeds of any Asset Sale or Recovery Event that results from Borrower shall notify the sale or other disposition of, or payment with respect to, any of Administrative Agent in writing thereof and prepay the Collateral, Obligations in an amount equal to 100% all such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such Net Cash Proceeds minus transaction and payable by the amount Borrower in connection therewith (in each case, paid to non-Affiliates); provided, that the Borrower shall not be required to prepay the Obligations with respect to (i) proceeds from the sales of inventory in the ordinary course of business, (ii) proceeds from other asset sales permitted under Section 7.6 (other than Section 7.6(a) and 7.6(e)) and (iii) proceeds that are reinvested in long-term assets then used or usable in the business of the Borrower and its Subsidiaries within 90 days following receipt thereof. Any such Net Cash Proceeds applied to the Indebtedness prepayment required under the Exit Facility Agreement this Section 2.8(a) shall be applied in accordance with subsection (c) of this Section.
(b) No later than the date of receipt by the Borrower or any of its Subsidiaries of any cash proceeds from any issuance of Indebtedness or Capital Stock by the Borrower or any of its Subsidiaries, the Borrower shall, subject to the prepayment of Prepayment Fee owing under Section 2.10(c), notify the Loans as set forth Administrative Agent in Section 2.5(f) within ten (10) Business Days after writing thereof and prepay the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, Obligations in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Eventproceeds from an issuance of Indebtedness, $30,000,000 all such proceeds and (y) with respect to proceeds from an issuance of Capital Stock, 40% of such proceeds, in each case, net of underwriting discounts and commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the aggregate during any fiscal year Borrower in connection therewith (in each case, paid to non-Affiliates); provided, that the Borrower shall not be required to prepay the Obligations with respect to proceeds of the BorrowerIndebtedness permitted under Section 7.1; provided, $200,000,000; provided that Net Cash Proceeds that are further, that, with respect to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) a prepayment using proceeds of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or an issuance of Capital Stock as required by subclause (y) above, the Borrower may, at its option, defer such prepayment (and the payment of any Prepayment Fee owing in connection therewith) and instead place such proceeds in a third-party escrow account with an escrow agent reasonably satisfactory to the Required Lenders and pursuant to escrow documentation reasonably satisfactory to the Required Lenders, which proceeds shall be used to prepay the Obligations in an amount equal to all of such proceeds required under subclause (y) above (including all amounts held in such escrow account, less any accrued interest on amounts held in such escrow account) plus the amount of any Prepayment Fee required in connection therewith at any time that (1) the balance in such escrow account exceeds $12,000,000 or (2) the Borrower withdraws any such proceeds from such escrow account. Any such prepayment required under this Section 2.8(b) shall be applied in accordance with subsection (c) of this sentenceSection.
(dc) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of Any prepayments made by the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 2.8 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, as follows: first, to ABR Loans andthe Administrative Agent’s fees, indemnities and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to Eurodollar Loans. Each prepayment all reimbursable expenses of the Loans under this Section 2.5 shall be accompanied by accrued interest Lenders then due and payable pursuant to any of the Loan Documents, pro rata to the date Lenders based on their respective pro rata shares of such prepayment fees and expenses; third, to interest and fees (including the Prepayment Fee) then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and fourth, to the amount prepaidprincipal 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.
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Mandatory Prepayments. (a) Unless In the Required Lenders otherwise agreeevent of any Asset Sale pursuant to Section 6.4(a), an amount equal to 50% the Borrowers shall, within five (5) Business Days after the receipt of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureAsset Sale, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to apply 100% of the Net Cash Proceeds of such Asset Sale to prepay all amounts due under the Loans and any incurrence Applicable Repayment Fee thereon in accordance with Section 2.7; provided that no prepayment shall be required under this Section 2.6(a) unless and until the aggregate Net Cash Proceeds received during any fiscal year from Asset Sales exceeds $250,000 in the aggregate (and only such amount in excess of Indebtedness of any Loan Party (excluding any Indebtedness permitted the foregoing threshold amount shall be required to be incurred under Section 6.2) shall be applied to prepay the prepayment Loans); provided further that so long as no Event of Default has occurred and is continuing, the recipient of such Net Cash Proceeds may reinvest such Net Cash Proceeds within three hundred sixty-five (365) days after receipt of such proceeds (or within one hundred eighty (180) days after such proceeds become subject to a binding commitment to reinvest such proceeds within three hundred sixty-five (365) days of receipt thereof), in assets of a kind used or useful in the business of a Borrower or any of its Subsidiaries. Subject to, and in addition to, the provisos in the preceding sentence, the Borrowers may (a) retain up to 50% of the Loans as set forth in Section 2.5(ffirst $10,000,000 of Net Cash Proceeds from an Approved Mitigation Bank Land Sale for working capital and general corporate purposes without having to make a mandatory prepayment with respect thereto and (b) retain any additional Net Cash Proceeds from an Approved Mitigation Bank Land Sale without having to make a mandatory prepayment with respect thereto; provided that (i) the Borrowers deliver a certificate to the Agent stating that such proceeds will be used to pay cash interest on the date Loans pursuant to Section 2.4(a) within ten (10) days of receipt thereof, (ii) such proceeds are deposited in a deposit account subject to the control of the Agent, and (iii) upon the earlier of (x) the expiration of the period specified in the relevant certificate furnished to the Agent or (y) the occurrence and continuance of an Event of Default, such proceeds, if not theretofore so used, shall be used to prepay the Loans in accordance with Section 2.7.
(b) In the event of any Recovery Event, the Borrowers or any Subsidiary shall within five (5) Business Days after the receipt of Net Cash Proceeds of such incurrence. An amount equal to Recovery Event, apply 100% of the Net Cash Proceeds of such Recovery Event first to prepay all amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7; provided that that no prepayment shall be required under this Section 2.6(b) unless and until the aggregate Net Cash Proceeds received during any incurrence fiscal year from Recovery Events exceed $250,000 in the aggregate (and only such amount in excess of Permitted Subordinated Indebtedness of any Loan Party the foregoing threshold amount shall be required to be applied to prepay the prepayment Loans); provided further that, and so long as no Event of Default has occurred and is continuing, the Loans as set forth in Section 2.5(frecipient (other than Agent) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such any Net Cash Proceeds are not used prior from a Recovery Event may reinvest such proceeds within three hundred sixty-five (365) days after receipt of such proceeds (or within one hundred eighty (180) days after such proceeds become subject to a binding commitment to reinvest such 121st day to make proceeds within three hundred sixty-five (v365) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions days of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bereceipt thereof), (y) in assets of a Permitted Acquisition (so long as kind used or useful in the business of a Borrower shall have complied with the provisions or any of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesits Subsidiaries.
(c) Unless In the Required Lenders event of any incurrence of Indebtedness by the Borrowers or the Subsidiaries (other than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 6.1), the Borrowers shall otherwise agree within five (5) Business Days apply 100% of the Net Cash Proceeds received with respect thereto to prepay amounts due under the Loans and unless a Reinvestment Notice is delivered any Applicable Repayment Fee thereon in accordance with Section 2.7.
(d) In the event of any public offering of Depositary Receipts, the Borrowers shall within five (5) Business Days, apply 75% of the Net Cash Proceeds received with respect thereto to prepay amounts due under the Loans and any Applicable Repayment Fee thereon in accordance with Section 2.7.
(e) The Agent shall deliver any notice of deposit it receives from the Borrowers under this Section 2.6 to the Administrative Agent Lenders within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceDays.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Mandatory Prepayments. (a) Unless The Borrower may (and shall provide notice thereof to the Required Lenders otherwise agreeAdministrative Agent not later than 10:00 a.m. (New York City time) on the date of termination or reduction, and the Administrative Agent shall promptly distribute copies thereof to the Lenders) terminate in whole or reduce ratably in part the unused portions of the Facility A Revolving Commitments; provided that any such partial reduction shall be in the aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
(b) Upon the occurrence of a Change of Control the Commitments shall be reduced to zero and the principal amount outstanding hereunder, all interest thereon and all other amounts payable under this Agreement and the other Loan Documents shall become and be forthwith due and payable, without presentment, demand, protest or further notice of any kind, all of which are hereby expressly waived by the Borrower.
(c) From and after the date that all of the obligations under the Enterprises 2003 Credit Agreement shall have been paid in full in cash and the Enterprises 2003 Credit Agreement shall have been terminated, the Borrower shall make the following mandatory prepayments:
(i) Promptly and in any event within 3 Business Days after the Borrower's or any of its Subsidiaries' receipt of any Net Proceeds from the sale or issuance of equity securities, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to 50% one hundred percent (100%) of such Net Proceeds;
(ii) Promptly and in any event within 3 Business Days after the Borrower's or any of its Subsidiaries' receipt of any Net Proceeds from the incurrence of Debt For Borrowed Money, other than Debt incurred by Consumers or any Subsidiary of Consumers, the Borrower shall make or cause to be made a mandatory prepayment of the Obligations in an amount equal to one hundred percent (100%) of such Net Cash Proceeds; and
(iii) Promptly and in any event within 3 Business Days after the Borrower's or any of its Subsidiaries' receipt of any Net Proceeds from the sale, assignment or other disposition of (but not the lease or license of) any property, including, without limitation, any sale of capital stock or other equity interest in any of the Borrower's direct or indirect Subsidiaries, in an amount, when combined with the Net Proceeds of any issuance of Capital Stock by any Loan Party shall be all other such transactions since the Closing Date that have not been applied to the prepayment of the Loans as set forth Obligations in Section 2.5(f) on the 121st day after the date accordance with this clause (iii), in excess of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure$10,000,000, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, make or cause to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have be made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the mandatory prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to one hundred percent (100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2%) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An aggregate Net Proceeds, provided that such amount equal to 100% shall exclude Net Proceeds arising from (A) any sale, assignment or other disposition of property by Consumers or any Subsidiary of Consumers (other than the Net Cash Proceeds capital stock of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beConsumers), (yB) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions sale of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases all or (zz) a prepayment or repayment substantially all of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter electrical power book of intent or definitive purchase documentation with respect thereto MS&T and (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (xC) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition ofby the Borrower or any of its Subsidiaries in the ordinary course of business consistent with past practice, provided, further that any Designated Prepayment under this clause (iii) shall be made without regard to whether the obligations under the Enterprises 2003 Credit Agreement shall have been paid in full in cash and terminated if an "Event of Default" under (and as defined in) the AIG Pledge Agreement arising from the non-compliance with the terms of Section 4.5 of the AIG Pledge Agreement has occurred and is continuing, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded would result from the requirement transaction giving rise to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentencesuch Designated Prepayment.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. If
(i) the Borrower sells all or any part of its property and assets with an aggregate value of over one hundred million (100,000,000) Yen (excluding (x) sales of inventory in the ordinary course of business and (y) dispositions of assets, the proceeds from which are within three (3) months re-invested in assets which are comparable or superior as to type, value and quality), (ii) the Borrower, subject to the terms and conditions of the Insurance Claims Pledge Agreement, receives any Extraordinary Receipts (excluding (a) Unless such receipts in value less than three hundred million (300,000,000) Yen which are reinvested in the Required Lenders otherwise agree, an amount equal to 50% businesses normally conducted by the Borrower and within three (3) months of receipt of the Net Cash Proceeds same, and (b) receipt of repayment from the Guarantor of all or any part of the Parent On-Loans), or (iii) the Borrower issues or incurs after the Closing Date any additional Indebtedness, except as may be otherwise permitted under this Loan Agreement, then the Borrower must promptly inform the Administrative Agent thereof and forward all the net cash proceeds (i.e., the aggregate amount of cash received after deducting therefrom only (without duplication) (a) reasonable and customary brokerage commissions, underwriting fees and discounts, legal fees, finder’s fees and other similar fees and commissions, (b) the amount of taxes payable in connection with or as a result of such transaction and (c) the amount of any issuance Indebtedness that, by the terms of Capital Stock by the agreement or instrument governing such Indebtedness, is required to be repaid upon such disposition) realized as a result thereof no later the five (5) Business Days after the occurrence thereof to the Administrative Agent’s Designated Account for the account of the Lenders as prepayment of all or any part of the Advances and interest accrued thereon. The Administrative Agent shall promptly notify each Lender of its receipt of each such notice, and of the amount each Lender shall be entitled to receive therefrom, which shall be the product of the total prepayment amount and each such Lender’s Pro Rata Participation Factor. The Administrative Agent shall distribute such payments to each Lender entitled thereto in accordance with the terms of this Loan Party Agreement. Each such prepayment shall be applied to the prepayment amount of the Loans Loan outstanding, as set forth in Section 2.5(f) on the 121st day after of the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureprepayment, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied accordance with the provisions of each Lender’s Pro Rata Participation Factor. Amounts prepaid under this Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds 2.8. shall be applied to the prepayment on a pro-rata basis in reduction of the Loans as specified above repayment installments referred to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesAmortization Schedule.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Term Loan Facility Agreement (Advanced Medical Optics Inc)
Mandatory Prepayments. (a) Unless In addition to the Required Lenders otherwise agreeregularly scheduled principal payments due on the Term Loan under Section 2.02(a) above, any voluntary prepayments made by XxXxxxx Electronics under Section 2.11 above and any payments made by XxXxxxx Electronics under Section 2.12(b) below, until the Term Loan has been paid in full, XxXxxxx Electronics hereby covenants and agrees to make mandatory prepayments on the Term Loan in an amount equal to 50% (i) One Hundred Percent (100%) of the Net Cash Proceeds net cash proceeds received by the Company from the issuance of any issuance of Capital Stock by any Loan Party shall be applied capital stock or other equity securities subsequent to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of this Agreement (which prepayment shall be due and payable within ten (10) days after the Company's receipt of such issuance proceeds) and (ii) One Hundred Percent (100%) of the net cash proceeds received by the Company or any Subsidiary from the sale or other disposition of any Property (other than the sale of Inventory in the ordinary course of business) to the extent such Net Cash Proceeds proceeds are not used prior to such 121st day to make within ninety (v90) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment days after receipt thereof by the Company or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investmentapplicable Subsidiary, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to purchase replacement assets and to the extent applicable, with respect the aggregate amount of such proceeds received by the Company and its Subsidiaries on a combined basis during any fiscal year of the Company and not so used to purchase replacement assets exceeds the sum of $1,000,000.00 (which prepayment shall be due and payable within ninety (90) days after receipt of such proceeds by the Company and/or any assets acquired by any Group Member Subsidiary). All payments due pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of this Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.22.12(a) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% scheduled installments of the Net Cash Proceeds Term Loan in the inverse order of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to their stated maturities (and allocated among the prepayment Lenders based on their respective Pro Rata Shares of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beTerm Loan), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(cb) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered In addition to the Administrative Agent within three (3regularly scheduled principal payments due on the Term Loan under Section 2.02(a) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect toabove, any of voluntary prepayments made by XxXxxxx Electronics under Section 2.11 above and any payments made by XxXxxxx Electronics under Section 2.12(a) above, until the CollateralTerm Loan has been paid in full, XxXxxxx Electronics hereby further covenants and agrees to make mandatory prepayments on the Term Loan in an amount equal to 100% Fifty Percent (50%) of such Net Consolidated Excess Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(fFlow (if any) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on for each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, Company commencing with the fiscal year of the Borrower Company ending December 31on or about June 30, 2008, 2005 (which prepayments shall be due and payable within one hundred twenty (120) days after the Applicable Amount end of the Adjusted Excess Cash Flow for any applicable fiscal year of the Borrower Company). All mandatory prepayments due on the Term Loan pursuant to this Section 2.12(b) shall be applied to the prepayment scheduled installments of principal of the Loans as set forth Term Loan in Section 2.5(f) the inverse order of their stated maturities (and allocated among the Lenders based on their respective Pro Rata Shares of the Prepayment Application DateTerm Loan).
(ec) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year The Company hereby agrees to make mandatory prepayments of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) principal on the Prepayment Application Date.
(f) Amounts Revolving Credit Loan in an amount equal to each amount received by XxXxxxx Electronics from Pinnacle Electronics, LLC and/or any escrow account with respect to any purchase price adjustments, indemnity obligations and/or otherwise under the Pinnacle Electronics Acquisition Agreement, each such mandatory prepayment to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date due and payable within one (1) Business Day after XxXxxxx Electronics' receipt of such prepayment on the amount prepaidamount.
Appears in 1 contract
Samples: Loan Agreement (Labarge Inc)
Mandatory Prepayments. (ai) Unless Upon the Required Lenders otherwise agree, an amount equal to 50% closing of the Net Cash Proceeds of any issuance of Capital Stock Business Combination under the Business Combination Agreement and if the PIPE closes in connection therewith, the Company shall repay the Note in its entirety by any Loan Party shall be applied the payment to the prepayment of the Loans as set forth Holder in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, available Dollars an amount equal to the Reinvestment Mandatory Prepayment Amount Amount. If this Note has not otherwise been paid off in full in accordance with respect to the relevant Reinvestment Event shall be applied to the prepayment preceding sentence or otherwise, so long as a majority of the Loans original aggregate principal amount of the Notes remains outstanding on the date of any Subsequent Offering (as set forth defined below), on the 10th day following the Company consummating any public or private offering of any Capital Stock or any other issuance of any Capital Stock or of any other Securities or any other financing, including any debt financing, or capital-raising transaction (each a “Subsequent Offering”) on any date other than the Maturity Date, in Section 2.5(fwhich the Company receives or is otherwise entitled to receive (except for the Company directing that such proceeds be paid to other Persons). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery EventCompany shall, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations Holder’s conversion rights set forth herein, pay to the Holder in clause (ximmediately available Dollars an amount equal to the Mandatory Prepayment Amount. The Company shall provide notice to the Holder of the closing of such Subsequent Offering, including the expected gross proceeds thereof, not later than the 10th day preceding the date of consummation of such Subsequent Offering, which notice shall be irrevocable and constitute an agreement to pay the Mandatory Prepayment Amount on the date of consummation of such Subsequent Offering. This Section 2(b) or (y) of is merely a requirement to redeem this sentenceNote and not an authorization to consummate any Subsequent Offering.
(dii) Unless Upon the Required Lenders shall otherwise agree, commencing with the fiscal year closing of the Borrower ending December 31, 2008a Fundamental Transaction or a Change of Control Transaction, the Applicable Amount of Company shall repay the Adjusted Excess Cash Flow for any fiscal year of Note in its entirety by the Borrower shall be applied payment to the prepayment of the Loans as set forth Holder in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied immediately available Dollars an amount equal to the prepayment of the Loans as set forth in Section 2.5(f) on the Mandatory Prepayment Application DateAmount.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Security Agreement (Digital Health Acquisition Corp.)
Mandatory Prepayments. (a) Unless If any Capital Stock or Indebtedness --------------------- shall be issued or incurred by any Group Member (excluding (i) any Indebtedness incurred in accordance with Section 7.2, (ii) any Capital Stock issued pursuant to management, employee or director compensation plans, any Capital Stock (other than Disqualified Capital Stock) issued in connection with a Permitted Acquisition and any Capital Stock (other than Disqualified Capital Stock) issued in connection with a transaction described in Sections 7.4 and 7.5(d) and (iii) the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock (other than Disqualified Capital Stock) the proceeds of which are to be used by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day Borrower to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment the ABI 35 Payment or a Proceeds Investment (in either case so long as any other payment under the License Agreement or the Manufacturing Agreement and the Borrower shall have complied with the provisions delivered a certificate of Section 5.9, a Responsible Officer to the extent applicable, with respect to any assets acquired by any Group Member pursuant Administrative Agent to such Board-Approved Investment or Proceeds Investment, as the case may beeffect), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) thereof shall be applied to on the date of such issuance or incurrence toward the prepayment of the Tranche A Term Loans and a prepayment of the Revolving Loans as set forth in Section 2.5(f2.9(d), but not a reduction of the Revolving Commitments; provided, that such percentage shall be reduced to 50% -------- with respect to the issuance by the Borrower of Capital Stock (other than Disqualified Stock) if the Consolidated Leverage Ratio of the Borrower determined on a pro forma basis is less than 2.0 to 1.0 after giving effect to --------- the date application of such incurrencethe proceeds thereof. An amount equal to 100% of Notwithstanding the foregoing the Borrower will repay the Tranche A Term Loans in full with the Net Cash Proceeds of from a Qualified IPO.
(i) If on any incurrence of Permitted Subordinated Indebtedness of date any Loan Party Group Member shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such receive Net Cash Proceeds are not used prior to such 121st day to make (v) from any Asset Sale, then, unless a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date Reinvestment Notice shall be extended to the 181st day after delivered in respect thereof, such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to on such date toward the prepayment of the Tranche A Term Loans as specified above to and the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member reduction of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans Revolving Commitments as set forth in Section 2.5(f2.9(d); provided that, -------- notwithstanding the foregoing, (A) within ten (10) Business Days after the day of receipt of any such aggregate Net Cash Proceeds by any Group Member; provided that no prepayment of may be excluded from the Loans shall be required to be made foregoing requirement pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to shall not exceed $5.0 million in the immediately preceding sentence, case of Asset Sales in any fiscal year of the Borrower and (B) on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Tranche A Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.5(f2.9(d). Notwithstanding ; provided, -------- however, that in the delivery event of a any Reinvestment Notice pursuant Event relating to this paragraphany Mortgaged ------- Property and/or any other Collateral, the aggregate Net Cash Proceeds relating thereto shall be deposited and maintained in the Collateral Account and withdrawn and applied in accordance with the provisions of Asset Sales and the Master Security Agreement.
(ii) If on any date any Group Member shall receive Net Cash Proceeds in excess of $500,000 from any Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to Event, then, unless a Reinvestment Notice shall not exceed (x) with be delivered in respect to any single Asset Sale or Recovery Eventthereof, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that such Net Cash Proceeds that are to in excess of $500,000 shall be applied to make Permitted on such date toward the prepayment of the Tranche A Term Loans and the reduction of the Revolving Commitments as set forth in Section 2.9(d); provided, however, if the following conditions ----------------- are satisfied, such prepayment of the Tranche A Term Loans and the reduction of the Revolving Commitments will not be required: (A) no Event of Default shall have occurred and be continuing; (B) within 270 days of the receipt of such Net Cash Proceeds, (1) such Net Cash Proceeds Reinvestments described in clause are used to replace or restore or otherwise repair the Recovery Event Assets with Replacement Assets or (i2) the Borrower shall have entered into binding contractual commitments to replace, restore, build or otherwise repair the Recovery Event Assets and the work to replace, restore, build or repair the Recovery Event Assets shall have been commenced; (C) prior to the application of the definition thereof shall be excluded in determining the aggregate such Net Cash Proceeds subject pursuant to the limitations set forth in clause (xB)(1) or (yB)(2) above, such Net Cash Proceeds shall be deposited in the Collateral Account and withdrawn and applied in accordance with the provisions of this sentencethe Master Security Agreement; and (D) the Borrower has demonstrated to the reasonable satisfaction of the Administrative Agent sufficient funds and/or insurance proceeds to make any mandatory prepayment under the Loans until such time as the Recovery Event Assets have been reconstructed and are fully operational or Replacement Assets have been acquired.
(dc) Unless the Required Lenders shall otherwise agreeIf, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower commencing with the fiscal year ending December 31, 2002, there shall be applied to Excess Cash Flow, the Borrower shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow toward the prepayment of the Tranche A Term Loans and the prepayment of the Revolving Loans as set forth in Section 2.5(f) 2.9(d), but not a reduction of the Revolving Commitments. Each such prepayment and commitment reduction shall be made on the Prepayment a date (an "Excess Cash Flow Application Date") no later than five days after the earlier of (i) the date on which the financial statements of the Borrower referred to in Section 6.1(a), for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(fd) Amounts to be applied in connection with prepayments and Commitment reductions made pursuant to paragraphs (a) through (c) of this Section 2.5 2.9 shall be applied applied, first, to the prepayment of the Tranche A Term Loans on a pro rata basis and, second, to prepay any Revolving Loans and in accordance the -------- ------ case of Section 2.9(b) only to reduce permanently the Revolving Commitments in the amount of the prepayment of the Revolving Loans. Any such reduction of the Revolving Commitments shall be accompanied by prepayment of the Revolving Loans to the extent, if any, that the Total Revolving Extensions of Credit exceed the amount of the Total Revolving Commitments, provided that if the aggregate -------- principal amount of Revolving 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 Section 2.11(b)the Administrative Agent for the benefit of the Lenders on terms and conditions satisfactory to the Administrative Agent. The application of any prepayment pursuant to this Section 2.5 2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Eurocurrency Loans. Each ----- ------ prepayment of the Loans under this Section 2.5 2.9 (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.
Appears in 1 contract
Samples: Credit Agreement (American Pharmaceutical Partners Inc /Ca/)
Mandatory Prepayments. Within ten (10) Business Days of the receipt of Net Cash Proceeds from the occurrence of any Casualty Event or Asset Sale by any Obligor (other than any Asset Sale (i) to any other Obligor or (ii) permitted by clauses (a), (b), (c), (d)(ii), (f), (g), (h), (k), (l) Unless (with respect to clauses (A) and (B)(1) of the Required Lenders otherwise agreedefinition of Permitted Licenses) or (m) of Section 9.09), in each case, in excess of ten million Dollars ($10,000,000) per occurrence or in the aggregate collectively since the Closing Date (the “Minimum Proceeds Threshold”), the Borrower shall apply an amount equal to 50% one hundred percent (100%) of the Net Cash Proceeds of any issuance of Capital Stock received by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, applicable Obligor with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment Casualty Event or Proceeds InvestmentAsset Sale, as the case may be), to the (yi) a Permitted Acquisition prepayment of outstanding principal of the Loan, and (ii) payment of accrued and unpaid interest on the principal amount of the Loan being prepaid and the payment of the Early Prepayment Fee and the Make-Whole Fee, if applicable. Notwithstanding the foregoing, so long as no Event of Default has occurred and is continuing or shall immediately result therefrom, if, within fifteen (15) Business Days following the Borrower shall have complied with the provisions receipt of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied in excess of the Minimum Proceeds Threshold from any such Casualty Event or Asset Sale, a Responsible Officer of the Borrower delivers to the prepayment Administrative Agent a notice to the effect that the Borrower or the applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event or Asset Sale to reinvest in the business of the Loans as specified above to Borrower or the extent applicable Obligor, then such Net Cash Proceeds are not used prior to of such 181st day to consummate (x) a Board-Approved Investment Casualty Event or Proceeds Investment (Asset Sale may be applied for such purpose in either case so long as the Borrower shall have complied with the provisions lieu of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member such mandatory prepayment otherwise required pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
this clause (b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds of such Casualty Event or Asset Sale are actually applied for such purpose; provided that, in the event that such Net Cash Proceeds have not used prior to such 121st day to make been so applied within three hundred sixty five (v365) a Capital Expendituredays following the receipt thereof, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with make a mandatory prepayment of the provisions Loan in an aggregate amount equal to one hundred percent (100%) of Section 5.9, to the extent applicable, unused balance of such Net Cash Proceeds received by the Borrower or the applicable Obligor with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment Casualty Event or Proceeds InvestmentAsset Sale, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans application in accordance with Section 2.11(b4.01(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Credit Agreement (Invitae Corp)
Mandatory Prepayments. (ai) Unless Within one Business Day of the Required Lenders otherwise agree, an amount equal to 50% date of receipt by any Loan Party or any of its Subsidiaries of the Net Cash Proceeds of any issuance voluntary or involuntary sale or disposition of Capital Stock by assets of any Loan Party shall be applied to the prepayment or any of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make its Subsidiaries (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the including Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (insurance or arising from casualty losses or condemnations and payments in lieu thereof, but excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of from sales or dispositions which qualify as Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day Dispositions under clauses (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bea), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionb), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investmentc), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitiond), (e), (j), (k), (l), (m) or (zn) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds definition of any Asset Sale or Recovery Event that results from Permitted Dispositions), Borrowers shall prepay the sale or other disposition of, or payment with respect to, any outstanding principal amount of the Collateral, Term Loans in accordance with Section 2.7 in an amount equal to 100% of such Net Cash Proceeds minus received by such Person in connection with such sales or dispositions; provided, that so long as (A) no Default or Event of Default shall have occurred and is continuing or would result therefrom, (B) Borrowers shall have given Agent prior written notice of Borrowers’ intention to apply such monies to the costs of replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the business of such Loan Party or its Subsidiaries, (C) the monies are held in a Deposit Account in which Agent has a perfected security interest, and (D) such Loan Party or its Subsidiary, as applicable, completes such replacement, purchase, or construction within 180 days after the initial receipt of such monies, then the Loan Party or such Loan Party’s Subsidiary whose assets were the subject of such disposition shall have the option to apply such monies to the costs of replacement of the assets that are the subject of such sale or disposition unless and to the extent that such applicable period shall have expired without such replacement, purchase, or construction being made or completed, in which case, any amounts remaining in the Deposit Account referred to in clause (C) above shall be paid to Agent and applied in accordance with Section 2.7; provided, that no Loan Party nor any of its Subsidiaries shall have the right to use such Net Cash Proceeds to make such replacements, purchases, or construction in excess of $1,000,000 in any given fiscal year. Nothing contained in this Section 2.8(b) shall permit any Loan Party or any of its Subsidiaries to sell or otherwise dispose of any assets other than in accordance with Section 6.4. Notwithstanding the foregoing, to the extent that the Borrowers or any of their Subsidiaries receive Net Cash Proceeds attributable to ABL Priority Collateral (as defined in the Intercreditor Agreement), the amount of such Net Cash Proceeds applied attributable to such ABL Priority Collateral shall, to the Indebtedness under extent required by the Exit Intercreditor Agreement so long as the ABL Facility Agreement shall be applied to the prepayment of the Loans as set forth is in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall effect, not be required to be made pursuant applied towards the Obligations but shall instead, to this subsection until the amount of Net Cash Proceeds to extent required by the ABL Facility and the Intercreditor Agreement, be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to prepay obligations under the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans ABL Facility in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to ABL Credit Agreement and the date of such prepayment on the amount prepaidIntercreditor Agreement.
Appears in 1 contract
Samples: First Lien Term Loan Facility Credit Agreement (Jakks Pacific Inc)
Mandatory Prepayments. The Borrower shall on or prior to the third (a3rd) Unless Business Day following the Required Lenders otherwise agreeoccurrence of any applicable event under clauses (i) through (iii) below, an prepay the Term Loans in amounts as provided below, plus the Prepayment Premium on the principal amount equal to 50% of the Net Cash Proceeds Term Loans being prepaid (calculated in accordance with Section 3.03(a)(ii), it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), plus any accrued but unpaid interest and fees then due and owing, as follows:
(i) In the event of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated IndebtednessCasualty Event, an amount equal to 100% of the Net Cash Proceeds received by any Obligor with respect thereto; provided, however, so long as no Default has occurred and is continuing within one hundred eighty (180) days after receipt of such Net Cash Proceeds, the Obligors may apply the Net Cash Proceeds of any incurrence casualty policy not exceeding $2,500,000 in the aggregate for all losses under all Casualty Events during the term of Indebtedness this Agreement toward the replacement or repair of destroyed or damaged property; provided, further, that any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) such replaced or repaired property shall be applied to Collateral in which the prepayment Administrative Agent for the benefit of the Loans as set forth in Lenders has been granted a security interest under the Security Documents.
(ii) In the event any Obligor incurs Indebtedness other than Indebtedness that is permitted by Section 2.5(f) on the date of such incurrence. An amount equal to 9.01 hereof, 100% of the Net Cash Proceeds thereof received by such Obligor. For the avoidance of doubt, any prepayment made ‑40‑ pursuant to this Section 3.03(b)(ii) shall not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any incurrence Event of Permitted Subordinated Indebtedness Default which occurs in connection therewith, it being understood that any such Event of any Loan Party shall Default may only be applied to waived with the prepayment express consent of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesMajority Lenders.
(ciii) Unless In the Required Lenders shall otherwise agree and unless a Reinvestment Notice event any Obligor consummates an Asset Sale other than an Asset Sale that is delivered to the Administrative Agent within three permitted by Section 9.09 hereof (3) Business Days after the day of receipt by a Group Member other than Section 9.09(i)), 100% of the Net Cash Proceeds of any received by such Obligor in connection with such Asset Sale or Recovery Event that results from the sale or other disposition ofSale; provided, or payment with respect tohowever, any of the Collateralso long as no Default has occurred and is continuing, an amount equal to 100% within one hundred eighty (180) days after receipt of such Net Cash Proceeds minus Proceeds, the amount of Obligors may use such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to not exceeding $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) 2,500,000 in the aggregate for all Asset Sales during the term of this Agreement, to purchase, replace, repair or restore properties or assets used in the Obligors’ businesses; provided, further, that any fiscal year such purchased, replaced, repaired or restored property shall be Collateral in which the Administrative Agent for the benefit of the BorrowerLenders has been granted a security interest under the Security Documents. For the avoidance of doubt, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 3.03(b)(iii) shall not be applied deemed to be a consent to any Asset Sale or a cure or waiver of any Event of Default which occurs in connection therewith, it being understood that any such Event of Default may only be waived with the prepayment express consent of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidMajority Lenders.
Appears in 1 contract
Mandatory Prepayments. (ai) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, the aggregate cumulative amount of Net Asset Disposition Proceeds for such fiscal year exceeds $200,000,000; provided that Net 250,000, the Borrower shall, immediately after the completion of each sale or series of related sales or other disposition which results in such an excess or an increase in such an excess, (A) prepay the outstanding Term Loans and, if the Term Loans shall have been paid in full, (B) to the extent Revolving Loans are then outstanding, prepay such Revolving Loans (and, to the extent of any such prepayment, reduce the Revolving Loan Commitment), and (C) otherwise, Cash Proceeds that are Collateralize the outstanding Letter of Credit Obligations, in an aggregate principal amount equal to one hundred percent (100%) of such excess or such increase in such excess. Notwithstanding the foregoing, the Borrower shall not be applied required to make Permitted Net Cash Proceeds Reinvestments described in a prepayment pursuant to this clause (i) with respect to any sale or series of related sales (a "RELEVANT SALE") if the Borrower advises the Administrative Agent in writing at the time the Net Asset Disposition Proceeds from such Relevant Sale are received that it intends to reinvest all or any portion of such Net Asset Disposition Proceeds in replacement assets to the extent (A) such Net Asset Disposition Proceeds are in fact committed to be reinvested by the Borrower pursuant to a purchase contract providing for the acquisition of such replacement assets that is executed by the Borrower and the related seller within 45 days from the date of such Relevant Sale and (B) the acquisition of such replacement assets occurs within 180 days from the date on which such purchase contract is so executed and delivered. If, at any time after the occurrence of a Relevant Sale and prior to the acquisition of the definition thereof shall be excluded in determining related replacement assets, the aggregate Net Cash Proceeds subject to the limitations set forth 45 or 180 day period provided in clause (A) or (B) of the preceding sentence shall elapse without execution of the related purchase contract (in the case of clause (A)) or the occurrence of the related acquisition (in the case of clause (B)) or an Event of Default shall have occurred and be continuing, then the Borrower shall immediately prepay the Loans in the amount and in the manner described in the first sentence of this clause (i).
(ii) If, at any time after the Closing Date, the Borrower or any of its Subsidiaries issues or incurs any Indebtedness for borrowed money, including Indebtedness evidenced by notes, bonds, debentures or other similar instruments, but excluding Permitted Indebtedness, the Borrower shall, immediately after such issuance or incurrence, (A) prepay the outstanding Term Loans and, if the Term Loans shall have been paid in full, (B) to the extent Revolving Loans are then outstanding, prepay such Revolving Loans (and, to the extent of any such prepayment, reduce the Revolving Loan Commitment), and (C) otherwise, Cash Collateralize the outstanding Letter of Credit Obligations, in an aggregate principal amount equal to one hundred percent (100%) of the Net Debt Proceeds of such Indebtedness.
(iii) If, at any time after the Closing Date, the Borrower or any of its Subsidiaries issues or sells any Equity Securities (other than any issuance or sale specified in the proviso to the definition of Net Equity Proceeds or in connection with the funding of Expansion Capital Expenditures or the prepayment of Loans pursuant to Section 2.8(c)(vi)), the Borrower shall, immediately after such issuance or sale, (A) prepay the outstanding Term Loans and, if the Term Loans shall have been paid in full, (B) to the extent Revolving Loans are then outstanding, prepay such Revolving Loans (and, to the extent of any such prepayment, reduce the Revolving Loan Commitment), and (C) otherwise, Cash Collateralize the outstanding Letter of Credit Obligations, in an aggregate principal amount equal to one hundred percent (100%) of the Net Equity Proceeds of such Equity Securities.
(iv) No later than three (3) Business Days following (x) the date of receipt by the Borrower or any of its Subsidiaries of any Net Insurance Proceeds (other than insurance proceeds in respect of business interruption or anticipated loss in revenue) or Net Condemnation Proceeds, or (y) if applicable, the end of the 180-day period described in the proviso below), the Borrower shall (A) prepay the outstanding Term Loans and, if the Term Loans shall have been paid in full, (B) to the extent Revolving Loans are then outstanding, prepay such Revolving Loans (and, to the extent of any such prepayment, reduce the Revolving Loan Commitment), and (C) otherwise, Cash Collateralize the outstanding Letter of Credit Obligations, in an amount equal to the aggregate amount of the sum of such Net Insurance Proceeds and Net Condemnation Proceeds in such fiscal year (excluding any amounts used to repair, restore or replace assets in accordance with the immediately following proviso); provided that the Borrower shall not be obligated to make a prepayment under this clause (iv) if and to the extent that (i) the Borrower advises the Administrative Agent in writing at the time the applicable Loan Party receives such proceeds that such Loan Party intends to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived, and does so within 180 days of receipt thereof (or such longer period as is reasonably required to complete such repair, restoration or replacement; provided that the applicable Loan Party shall have commenced such repair, restoration or replacement during such 180-day period and thereafter proceeds with all due diligence to complete such repair, restoration or replacement within a reasonable period of time acceptable to the Administrative Agent), it being understood that any Net Insurance Proceeds or Net Condemnation Proceeds retained by such Loan Party but not actually expended within such time period to repair, restore or replace the assets from which such Net Insurance Proceeds or Net Condemnation Proceeds derived shall at that time immediately be used to prepay the Loans in the amount and in the manner described in the first sentence of this sentenceclause (iv).
(dv) Unless the Required Lenders shall otherwise agreeIf, commencing with the fiscal year following a deposit of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year to the Special Reserve Account pursuant to Section 6.1(q)(iii)(B), one or more of the Borrower conditions to Distribution set forth in Section 6.2(f)(i)(B) (the "DISTRIBUTION REQUIREMENTS") are not satisfied as of each of the succeeding two (2) consecutive Calculation Dates, all monies that have been on deposit in the Special Reserve Account for a period of two (2) consecutive fiscal quarters or longer shall be applied to prepay the prepayment Loans. All prepayments of the Loans as set forth in Section 2.5(fthen outstanding pursuant to this clause (v) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied (A) to prepay the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR outstanding Term Loans and, secondif the Term Loans shall have been paid in full, (B) to the extent Revolving Loans are then outstanding, prepay such Revolving Loans (and, to Eurodollar Loans. Each prepayment the extent of any such prepayment, reduce the Loans under this Section 2.5 Revolving Loan
(vi) shall be accompanied by accrued interest released to the date Borrower or at the Borrower's direction as Cash Available for Distribution if the Distribution Requirements are satisfied for each of such prepayment on two (2) consecutive Calculation Dates, and the amount prepaidBorrower may make a Distribution of such funds.
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Mandatory Prepayments. (i) Immediately upon the receipt by Borrower or any of its Subsidiaries of the proceeds of any Disposition by Borrower or any of its Subsidiaries of property or assets (excluding sales or dispositions which qualify as Permitted Dispositions under clauses (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make through (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bef), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionh), or (zi) Permitted Open Market Purchases.
(b) Unless of the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence definition of Permitted Subordinated IndebtednessDispositions), Borrower shall prepay the outstanding principal amount of the Obligations in accordance with Section 2.4(d)(i) in an amount equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) the Net Cash Proceeds of such Disposition are held in a cash collateral account in which Lender has a perfected first-priority security interest, and (C) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such monies, Borrower and its Subsidiaries shall have the option to apply such monies to the costs of replacement of the property or assets that are the subject of such sale or disposition unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, such monies shall be paid to Lender and applied in accordance with Section 2.4(d). Nothing contained in this Section 2.4(c)(i) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(ii) Immediately upon the issuance or incurrence by Borrower or any of Indebtedness its Subsidiaries of any Loan Party (excluding x) any Indebtedness (except for Indebtedness permitted to be incurred under Section 6.27.1) or (y) Stock (except for (A) the issuance of Stock by Borrower to MidOcean or any other Permitted Holder, (B) the issuance of Stock of Borrower to directors, officers and employees of Borrower and its Subsidiaries pursuant to employee stock option plans (or other employee incentive plans or other compensation arrangements) approved by the Board of Directors) Borrower shall be applied to prepay the prepayment outstanding principal amount of the Loans as set forth Obligations in accordance with Section 2.5(f2.4(d) on the date of such incurrence. An in an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of received by such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied Person in connection with prepayments made pursuant to such issuance or incurrence. The provisions of this Section 2.5 2.4(c)(ii) shall not be applied deemed to be implied consent to any such issuance or incurrence otherwise prohibited by the prepayment terms and conditions of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidAgreement.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied In addition to the prepayment of the Loans as set forth scheduled repayments provided for in Section 2.5(f) on 2.4 hereof, EnergySolutions shall prepay the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (Term Loans in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds (w) from any sale or disposition by Holdco, Parent or any of their Subsidiaries of any incurrence of Indebtedness of interest in any Loan Party (excluding other than from a sale to another Loan Party), (x) except as set forth below, from any Indebtedness permitted to be incurred under Section 6.2Permitted Asset Sales (other than any Excluded Asset Sales) shall be applied to the prepayment of the Loans and (y) except as set forth in Section 2.5(f5.5(e) on the date hereof, received as a result of such incurrencea casualty or condemnation. An Such amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied on the third Business Day following receipt thereof by EnergySolutions or the affected Subsidiary in accordance with Section 2.6(b). EnergySolutions shall also prepay the Term Loans, with application thereto in accordance with Section 2.6(b), in respective amounts equal to the prepayment after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business. Notwithstanding the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableforegoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of EnergySolutions, and so long as no Default or Event of Default shall have occurred and be continuing, EnergySolutions may reinvest all or any portion of such Net Proceeds in assets acquired by used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided, however, that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any Group Member capital assets purchased with the Net Proceeds thereof pursuant to such Board-Approved Investment this subsection shall be mortgaged or Proceeds Investmentpledged, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableAdministrative Agent, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment for the benefit of the Indebtedness under the Exit Facility Agreement; provided that Secured Parties and (ii) if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior no longer intended to such 181st day to consummate (x) be so reinvested at any time after delivery of a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notice of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateralreinvestment election, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.6(b). The application For the purposes of calculating the mandatory prepayment required by this Section 2.8(a), “Net Proceeds” shall exclude all Net Proceeds received by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(b) In addition to the scheduled repayments provided for in Section 2.4 hereof, EnergySolutions shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Second Amendment Effective Date from any Indebtedness for Money Borrowed incurred by Holdco, EnergySolutions, Parent or any of their Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or the Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition. Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b). For the purposes of calculating the mandatory prepayment required by this Section 2.8(b), “Net Proceeds” shall exclude all Net Proceeds received from any Indebtedness for Money Borrowed incurred by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(c) In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof (commencing with the fiscal quarter ended September 30, 2006), on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, EnergySolutions shall not be required prepay the Term Loans.
(d) On each date when the aggregate amount of all Synthetic Letter of Credit Outstandings exceeds the Synthetic Facility Available Amount, EnergySolutions shall cash collateralize all Synthetic Letter of Credit Outstandings in an aggregate amount equal to such excess.
(e) Any prepayment pursuant to this Section 2.5 2.8 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of made in the Loans under this manner set forth in Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.6(b).
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Mandatory Prepayments. (a) Unless Subject to the Required Lenders otherwise agree, an amount equal to 50% provisions of the Intercreditor Agreement, upon receipt by Terra Industries, the Borrowers or any of their respective Subsidiaries of Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(farising (i) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, from an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event a Debt Issuance, each Borrower shall immediately prepay its Loans (or provide cash collateral in respect of Letter of Credit) such that results from the sale or other disposition of, or payment with respect to, any aggregate amount of the Collateral, an amount all such payments is equal to 100% of such Net Cash Proceeds minus Proceeds, (ii) from an Equity Issuance each Borrower shall immediately prepay its Loans (or provide cash collateral in respect of Letters of Credit) such that the aggregate amount of all such payments is equal to 50% of such Net Cash Proceeds, or (iii) from an insured loss or casualty event (being, other than proceeds in respect of business interruption, "Insurance Proceeds"), each Borrower shall immediately prepay its Loans (or provide cash collateral in respect of Letters of Credit) such that the aggregate amount of all such payments is equal to 100% of such Net Cash Proceeds; provided, however, (x) any Net Cash Proceeds applied arising from the sale or other disposition of any property by Terra Canada or its Subsidiaries, shall not be required to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment Loans (or as cash collateral in respect of Letters of Credit) to the extent that such proceeds have been applied to prepay obligations in respect of the Loans as set forth Canadian Term Loan (in Section 2.5(faccordance with the Intercreditor Agreement) and (y) any Insurance Proceeds (which do not exceed $20,000,000 in respect of any single loss or event) may (provided, and for so long as, no Default or Event of Default shall have occurred which is continuing), at the request of the Borrowers, be applied in replacing or reinstating the affected assets; provided further that (A) such Net Cash Proceeds are so applied (or contractually committed to be so applied) within ten 360 days (10the "Reinstatement Date") Business Days after following the day occurrence of receipt the event giving rise to such Net Cash Proceeds, (B) such Net Cash Proceeds are deposited in a cash collateral account maintained with, and subject to a first priority Lien in favor of, the Administration Agent (which cash collateral may be included in the calculation of relevant Borrowing Base pending its application hereunder) over which the Administrative Agent shall possess sole dominion and control and (notwithstanding Section 11.1(a)(ix)) any Net Cash Proceeds deposited in such account for such purpose may not subsequently be withdrawn without the approval of the Administrative Agent and (C) any such Net Cash Proceeds or any portion thereof not applied in replacement or reinstatement of the affected assets (x) by the Reinstatement Date or (y) at any Group Member; provided that no time during the continuance of a Default or Event of Default at any time prior to the Reinstatement Date, shall be applied as mandatory prepayment of the Loans (or as cash collateral in respect of Letters of Credit) at such time. Any such mandatory prepayment shall be applied in accordance with the provisions of the Intercreditor Agreement.
(b) All repayments of Revolving Loans and Swing Loans required to be made pursuant to this subsection until Section 2.9 (except a repayment arising from the Permitted Sale Leaseback Transaction) shall result in a permanent reduction of the Revolving Credit Commitments to the extent provided in Section 2.5(b).
(c) If at any time, either (i) the aggregate principal amount of Net Cash Proceeds to be applied to make Revolving Credit Outstandings exceeds the Maximum Credit at such prepayment time or (ii) a Borrowing Base Deficiency exists in respect of any Borrower, each Borrower shall forthwith (or if such Borrowing Base Deficiency has occurred through receivables which were previously classified as Eligible Receivables being reclassified as ineligible, in which case upon the expiration of two Business Days during which such Borrowing Base Deficiency remains continuing) prepay its Swing Loans first and then its Revolving Loans then outstanding such that the aggregate amount of all such payments is at least equal to $10,000,000such excess or otherwise sufficient to eliminate such deficiency. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment any such excess or deficiency remains after repayment in full of the aggregate outstanding Swing Loans as and Revolving Loans, each Borrower shall provide cash collateral for its Letter of Credit Obligations in the manner set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject 9.3 to the limitations set forth in clause (x) extent required to eliminate such excess or (y) of this sentencedeficiency.
(d) Unless Each Borrower agrees that all available funds (others than those funds representing Net Cash Proceeds which are to be otherwise applied pursuant to this Section 2.9) in the Required Lenders shall otherwise agree, commencing with the fiscal year Cash Collateral Account of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the such Borrower shall be applied on a daily basis; first to repay the outstanding principal amount of its Swing Loans until its Swing Loans shall have been repaid in full; second to repay the outstanding principal balance of its Revolving Loans until its Revolving Loans shall have been repaid in full; and third to any other Obligations then due and payable. If there are no Loans outstanding and no other Obligations are then due and payable, then the funds in the Cash Collateral Account shall be retained in such Cash Collateral Account, or (if required by the Administrative Agent) transferred to the prepayment L/C Cash Collateral Account, to cash collateralize the Letter of Credit Obligations then outstanding and any contingent obligations which such Borrower may have under any Guaranty or any guaranty of the Loans as set forth Canadian Term Loan); provided, however, that (subject to Section 7.12(d)(iii) in Section 2.5(frespect of Terra UK) if on any Business Day after giving effect to the Prepayment Application Date.
(e) Unless the Required Lenders foregoing applications any funds are on deposit in its Cash Collateral Account and no Default or Event of Default shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008have occurred and be continuing, the Applicable Amount of applicable Borrower may direct the Adjusted Positive EBITDA Variance for any fiscal year of Administrative Agent to (and the Borrower shall be applied Administrative Agent shall) disburse such funds to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Datesuch Borrower's Disbursement Account.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. There shall become due and payable and Borrowers shall prepay the Term Loans (aand the Revolving Loans and Swingline Loans, to the extent required by Section 2.1(e)(i)) Unless in the Required Lenders otherwise agreefollowing amounts and at the following times:
(i) on the one hundredth (100th) day following the last day of each Fiscal Year, beginning with the Fiscal Year ending December 31, 2006, an amount equal to 50% Excess Cash Flow for such Fiscal Year;
(ii) promptly after the date on which any Credit Party (or Administrative Agent as loss payee or assignee) receives any Major Casualty Proceeds, an amount equal to one hundred percent (100%) of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureMajor Casualty Proceeds; provided, (w) a Restricted Paymentthat, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as no Event of Default under Section 8.1(a) or Section 8.1(b) as a result of a violation of Article 6 has occurred and is continuing, the Borrower shall have complied with the provisions recipient (other than Administrative Agent) of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment Major Casualty Proceeds may reinvest (or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered enter into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect commitment to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (xreinvest) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Major Casualty Proceeds applied within one hundred eighty (180) days, in replacement assets useful in the business of the Credit Parties; provided, that the aggregate amount which may be reinvested by the applicable Borrower and its Subsidiaries pursuant to the Indebtedness under preceding proviso may not exceed $1,000,000 in any Fiscal Year; provided, further, that if the Exit Facility Agreement shall be applied applicable Credit Party does not intend to fully reinvest or commit to reinvest such Major Casualty Proceeds, or if the prepayment of the Loans as time period set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any this sentence expires without such Net Cash Proceeds by any Group Member; provided that no prepayment of Credit Party having reinvested or committed to reinvest such Major Casualty Proceeds, Borrowers shall prepay the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds such Major Casualty Proceeds (to the extent not reinvested, committed to be reinvested or intended to be reinvested, as applicable within such time period);
(iii) upon receipt by any Credit Party of Asset Sales and Recovery Events that may be excluded the proceeds from the requirement to prepay the Loans contained in this paragraph issuance and sale of any Debt or equity securities (other than (1) proceeds of Debt securities permitted pursuant to a Reinvestment Notice shall not exceed Section 5.1, (x2) with respect proceeds of the issuance of equity securities by any Borrower received on or before the Closing Date, (3) proceeds from the issuance of equity securities to members of the management of any Credit Party or, so long as no Event of Default is then in existence, to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided Person that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application Closing Date owns equity securities of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.Borrower,
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Mandatory Prepayments. (a) Unless If, at the Required Lenders otherwise agreeend of any Fiscal Year, the Parent has a consolidated cash balance (which shall include all cash, cash equivalents and short-term investments) of at least Cdn.$45,000,000 (prior to the Parent’s 25% share of any Excess Cash Flow), and if the Credit Parties have generated Excess Cash Flow during such Fiscal Year, then the Borrower shall pay to the Collateral Agent, for the benefit of the Creditors and other Persons entitled to payments pursuant to the terms hereof, on or before March 31 of the immediately following Fiscal Year, an amount equal to 5075% of the Net Excess Cash Proceeds of any issuance of Capital Stock by any Loan Party Flow generated in such Fiscal Year. Any such amount shall be applied as contemplated by Section 2.2(d). The Parent shall manage its consolidated cash balance in the ordinary course and in a manner consistent with its cash management practices in prior periods, and shall not take any action or omit to take any action which is intended to reduce the prepayment consolidated cash balance of the Loans as set forth in Parent for the purpose of this Section 2.5(f2.2.
(b) on In the 121st day after the date event of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditurean Asset Disposition, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, pay to the extent applicableCollateral Agent, with respect for the benefit of the Creditors, within five Business Days following the receipt of the proceeds of such Asset Disposition, an amount equal to any assets acquired Net Proceeds in excess of Cdn.$2,000,000 in the aggregate in any Fiscal Year received from such Asset Disposition and any other Asset Disposition which generated Net Proceeds during such Fiscal Year. Any such amount shall be applied as contemplated by Section 2.2 (d); provided, however, that in the event of any Group Member pursuant payment which would otherwise be required to such Board-Approved Investment be made to the Tranche B Lenders or Proceeds Investmentthe Tranche C Lenders under any of Sections 2.2(d) (i), (iv), (ix) or (xi) (a “Triggering Event”), the Borrower shall, instead of paying the Collateral Agent, offer to prepay the Tranche B Loans or the Tranche C Loans, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not an amount which would have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred allocated under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence2.2(d) to prepay the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment Tranche B Loans or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds InvestmentTranche C Loans, as the case may be), (y) a Permitted Acquisition (so long as . Any such offer of prepayment shall be made by the Borrower in writing and shall be delivered to the Administrative Agent for the Tranche B Lenders or the Tranche C Lenders, as applicable, whereupon each such Administrative Agent shall forward a copy of such notice to the Tranche B Lenders or the Tranche C Lenders, as applicable. Each Tranche B Lender or Tranche C Lender, as applicable, shall be permitted to accept or reject any such offer of prepayment, and shall have complied with 5 Business Days to notify the provisions applicable Administrative Agent of Section 5.9its decision to accept or reject any such offer of prepayment as a result of such Triggering Event. Any Tranche B Lender or Tranche C Lender which fails to notify the applicable Administrative Agent, within such 5 Business Days, of its decision to accept or reject any such offer of prepayment as a result of such Triggering Event shall be deemed to have accepted such offer of prepayment. The applicable Administrative Agent shall notify the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment Collateral Agent of the Indebtedness under payment entitlements, if any, resulting from the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesforegoing.
(c) Unless the Required Lenders The Borrower shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent ensure that, within three (3) five Business Days after the day receipt of receipt the proceeds of any sale or issuance of Equity Securities by a Group Member Credit Party, the relevant Credit Party shall pay to the Collateral Agent, for the account of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the CollateralCreditors, an amount equal to 10075% of such any Net Cash Proceeds minus from the amount issuance of such Net Cash Proceeds applied Equity Securities, including any proceeds from the exercise of any of the Warrants; provided that, for greater certainty, this Section 2.2(c) shall not apply to the Indebtedness under the Exit Facility Agreement any issuance of Equity Securities by a Credit Party to another Credit Party. Any such amount shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied used to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in payments contemplated by Section 2.5(f2.2 (d). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless If, at the Required Lenders shall otherwise agreetime of any Mandatory Prepayment, commencing with the fiscal year of the Borrower ending December 31First Preferred Shares and Second Preferred Shares are issued and outstanding, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower then Mandatory Prepayments made pursuant to this Section 2.2 shall be applied sequentially, in the following priority (but subject always to the proviso in Section 2.2(b), and subject to the maintenance of a minimum consolidated cash balance (which shall include all cash, cash equivalents and short-term investments) of at least Cdn.$45,000,000, prior to the Parent’s 25% share of any Excess Cash Flow):
(i) first, subject to Section 2.2(f), to the permanent rateable prepayment of the principal amounts outstanding under the Tranche B Credit Agreement, up to a maximum aggregate amount equal to 25% of the original principal amounts under the Tranche B Credit Agreement;
(ii) second, to the payment of unpaid accrued interest on the Tranche C Loans, in accordance with the Tranche C Credit Agreement;
(iii) third, to the declaration and payment of dividends on the First Preferred Shares;
(iv) fourth, subject to Section 2.2(g), until the fifth anniversary of the Effective Date, on a pro rata basis, to the permanent rateable prepayment of the Tranche C Loans, up to a maximum aggregate amount equal to 25% of the original principal amount of the Tranche C Loans, and the redemption of up to 75% of the First Preferred Shares issued on the Effective Date;
(v) fifth, to the declaration and payment of dividends on the Second Preferred Shares;
(vi) sixth, until the fifth anniversary of the Effective Date, to the redemption of up to 75% of the number of Second Preferred Shares issued on the Effective Date;
(vii) seventh, after the fifth anniversary of the Effective Date, on a pro rata basis, to repayment of the remaining principal amount of Tranche C Loans as set forth and redemption of the remaining First Preferred Shares issued on the Effective Date; and
(viii) eighth, after the fifth anniversary of the Effective Date, to redemption of the remaining Second Preferred Shares issued on the Effective Date. If, at the time of any Mandatory Prepayment, First Units and Second Units are issued and outstanding, then Mandatory Prepayments made pursuant to this Section 2.2 shall be applied sequentially, in the following priority (but subject always to the proviso in Section 2.5(f2.2(b), and subject to the maintenance of a minimum consolidated cash balance (which shall include all cash, cash equivalents and short-term investments) of at least Cdn.$45,000,000, prior to the Parent’s 25% share of any Excess Cash Flow):
(ix) first, subject to Section 2.2(f), to the permanent rateable prepayment of the principal amounts outstanding under the Tranche B Credit Agreement, up to a maximum aggregate amount equal to 25% of the original principal amounts under the Tranche B Credit Agreement;
(x) second, to the payment of unpaid accrued interest on the Prepayment Application Tranche C Loans, in accordance with the Tranche C Credit Agreement;
(xi) third, on a pro rata basis, subject to Section 2.2(g), to the rateable prepayment of the Tranche C Loans and the rateable redemption of the First Units; provided that (A) until the fifth anniversary of the Effective Date, the amount allocated to the Tranche C Loans under this Section 2.2(d)(xi) shall be limited to a maximum aggregate amount equal to 25% of the original principal amount of the Tranche C Loans (without affecting the entitlement of the holders of First Units), and (B) from the date on which the First Units are issued until the fifth anniversary of the date on which the First Units are issued, the aggregate of all amounts allocated to the First Units under this Section 2.2(d)(xi) and Section 2.2(d)(xiii) shall be limited to a maximum aggregate amount equal to 25% of the original principal amount of the First Notes (without affecting the entitlement of the holders of Tranche C Loans);
(xii) fourth, until the fifth anniversary of the date on which the Second Units are issued, to the rateable redemption of the Second Units, up to a maximum aggregate amount equal to 25% of the original principal amount of the Second Notes;
(xiii) fifth, after the fifth anniversary of the Effective Date, on a pro rata basis, to repayment of the remaining principal amount of Tranche C Loans and redemption of the remaining First Units; provided that, from the date on which the First Units are issued until the fifth anniversary of the date on which the First Units are issued, the aggregate of all amounts allocated to the First Units under this Section 2.2(d)(xiii) and Section 2.2(d)(xi) shall be limited to a maximum aggregate amount equal to 25% of the original principal amount of the First Notes (without affecting the entitlement of the holders of Tranche C Loans); and
(xiv) sixth, after the fifth anniversary of the date on which the Second Units are issued, to redemption of the remaining Second Units. Any amount payable under this Section 2.2 to the holders of First Preferred Shares, Second Preferred Shares, First Units or Second Units shall be paid by the Collateral Agent to the transfer agent or trustee for the First Preferred Shares, Second Preferred Shares, First Units and Second Units, as applicable, and in consultation with the Parent so as to assist the Parent in coordinating the making of required payments, and the Collateral Agent shall not be responsible for any ultimate distribution to the holders thereof. Any amount remaining after the application of payments above shall be paid to the Parent or as otherwise required by applicable law.
(e) Unless In the Required Lenders shall otherwise agreecase of any payment pursuant to any of Sections 2.2(a), commencing with the fiscal year (b) or (c) of the Borrower ending December 31this Agreement, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied provide to the prepayment Collateral Agent written notice of such payment at least three Business Days prior to the date such payment is to be made. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified in such notice, together with any amounts payable pursuant to Section 2.10 of the Loans Tranche A Exit Facility Agreement, Section 2.10 of the Tranche B Credit Agreement or Section 2.7 of the Tranche C Credit Agreement, as set forth in applicable. Upon receipt of any notice given pursuant to this Section 2.5(f) on 2.2(e), the Prepayment Application DateCollateral Agent shall promptly notify each affected party of the contents thereof and of such party’s Pro Rata Share of such payment.
(f) Amounts If a Mandatory Prepayment required by Section 2.2(d)(i) or Section 2.2(d)(ix) would result in the repayment of an amount exceeding 25% of the aggregate original principal amount of the Tranche B Loans (the “Tranche B Tax Threshold Amount”) to be applied repaid on or before the fifth anniversary of the Effective Date, taking into account all Amortization Payments (as defined in connection with prepayments the Tranche B Credit Agreement) and all Mandatory Prepayments made to the Tranche B Lenders pursuant to this Sections 2.2(a) and (c) (but, for greater certainty, not taking into account any Mandatory Prepayments made to the Tranche B Lenders pursuant to Section 2.5 2.2(b), or any voluntary prepayments), then, notwithstanding Section 2.2(d)(i) or Section 2.2(d)(ix), that Mandatory Prepayment shall not be paid to the Tranche B Lenders, to the extent that such amount would cause the Tranche B Tax Threshold Amount to be exceeded, and shall instead be applied pursuant to Sections 2.2(d)(ii) through (viii) or Sections 2.2(d)(x) through (xiv), subject to the prepayment limitations provided therein.
(g) If a Mandatory Prepayment required by Section 2.2(d)(iv) or Section 2.2(d)(xi) would result in the repayment of an amount exceeding 25% of the aggregate original principal amount of the Tranche C Loans in accordance with Section 2.11(b). The application (the “Tranche C Tax Threshold Amount”) to be repaid on or before the fifth anniversary of any prepayment the Effective Date, taking into account all Mandatory Prepayments made to the Tranche C Lenders pursuant to this Sections 2.2(a) and (c) (but, for greater certainty, not taking into account any Mandatory Prepayments made to the Tranche C Lenders pursuant to Section 2.5 2.2(b), or any voluntary prepayments), then, notwithstanding Section 2.2(d)(iv) or Section 2.2(d)(xi), that Mandatory Prepayment shall not be made, firstpaid to the Tranche C Lenders, to ABR Loans andthe extent that such amount would cause the Tranche C Tax Threshold Amount to be exceeded, secondand shall instead be applied pursuant to Sections 2.2(d)(v) through (viii) or Section 2.2(d)(xii) through (xiv), to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest subject to the date of such prepayment on the amount prepaidlimitations provided therein.
Appears in 1 contract
Samples: Intercreditor and Collateral Agency Agreement (Microcell Telecommunications Inc)
Mandatory Prepayments. (a) Unless Following the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds consummation of any issuance Asset Sale by the Company or any of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth its Restricted Subsidiaries, in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrencecash proceeds, and on following receipt of cash proceeds representing payments under notes or other securities received in connection with any non-cash consideration obtained in connection with such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated IndebtednessAsset Sale, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) such Asset Sale shall be applied by the Company on the date of receipt thereof to the prepayment of the Loans as set forth in Section 2.5(f) on Term Loans, provided that if no Default or Event of Default shall have occurred and shall be continuing at the date time of such incurrence. An amount equal Asset Sale or at the proposed time of the application of such proceeds, such proceeds shall not constitute Net Proceeds if (x) within 360 days of receipt of such proceeds, such proceeds are applied (or are committed to be applied) to replace or restore any properties in respect of which such proceeds are paid to the Company and its Restricted Subsidiaries or such proceeds have been reinvested in productive assets of a kind then used or usable in the business of the Company and its Restricted Subsidiaries or contractually committed to be so applied(and if so committed to be applied, so long as such reinvestment is actually completed within 180 days after the end of the initial 360 day period following receipt thereof) or (y) such proceeds do not exceed (I) $5 million in any single transaction or (II) $25 million in any fiscal year;
(b) following the issuance of any Indebtedness (other than any issuance of Indebtedness permitted under Section 9.2) by the Company or any of its Restricted Subsidiaries, 100% of the Net Cash Proceeds received by the Company or its Restricted Subsidiaries from the issuance of any incurrence of Permitted Subordinated such Indebtedness of any Loan Party shall be applied by the Company on the date of receipt thereof to the prepayment of the Loans as set forth in Section 2.5(fTerm Loans;
(c) on following the 121st day (the “Payment Date”) after the date occurrence of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment any Casualty or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, condemnation event with respect to any assets acquired by property of the Company or any Group Member pursuant Restricted Subsidiary, 100% of all Casualty and condemnation proceeds in excess of amounts applied within 360 days of receipt of such proceeds to replace or restore any properties in respect of which such Board-Approved Investment proceeds are paid to the Company and its Restricted Subsidiaries (or Proceeds Investmentcontractually committed to be so applied (and if so committed to be applied, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionapplication is actually completed within 180 days thereafter), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied by the Company on the date of receipt thereof to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.Term Loans;
(d) Unless the Required Lenders shall otherwise agreeIf, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower Company commencing with the fiscal year ending December 31, 2015, there shall be applied Excess Cash Flow, the Company shall, on the relevant Excess Cash Flow Application Date, apply the ECF Percentage of such Excess Cash Flow to the prepayment of the Term Loans as set forth less the aggregate amount equal to the sum of (i) the principal amount of all optional prepayments of Term Loans and Incremental Term Loans made pursuant to Section 5.5(a) and (ii) the principal amount of the Revolving Credit Loans repaid during such period to the extent such repayment was accompanied by a permanent reduction of the Revolving Credit Commitments in at least a like amount, in each case made (x) during such fiscal year (without duplication of amounts subtracted pursuant to the following clause (y) with respect to the prior fiscal year) and (y) during the period between the end of such fiscal year and the date on which the Company is required to make the applicable prepayment pursuant to this Section 5.6(d). Each such prepayment shall be made on a date (an Excess Cash Flow Application Date) no later than ten Business Days after the earlier of (i) the date on which the financial statements of the Company referred to in Section 2.5(f8.1, for the fiscal year with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) on the Prepayment Application Datedate such financial statements are actually delivered.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year Payments in respect of the Borrower ending December 31Revolving Credit Facility pursuant to this Section 5.6, 2008first, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied ratably (i) to reimburse the Issuing Lenders for all unreimbursed L/C Disbursements for which the Issuing Lenders have not received payment from the Revolving Credit Lenders pursuant to the prepayment third sentence of Section 2.6(b), (ii) to reimburse those Revolving Credit Lenders which, pursuant to the fourth sentence of Section 2.6(b), have previously made payments to an Issuing Lender pursuant to the third sentence of Section 2.6(b) and (iii) to repay Swing Line Loans as set forth in Section 2.5(f) on the Prepayment Application Datewhich are not Refunded Swing Line Loans, second, shall be applied ratably to repay outstanding Revolving Credit Loans, and third, shall be used to Cash Collateralize all undrawn Letters of Credit then outstanding.
(f) Amounts [Reserved.]
(g) In the event and on such occasion that, other than by reason of currency fluctuations, the Aggregate Revolving Credit Extensions of Credit and Swing Line Loans exceed the aggregate Revolving Credit Commitments (including after giving effect to be applied any reductions in connection with prepayments made the Revolving Credit Commitments pursuant to this Section 2.5 5.4(a)), the Company shall be applied prepay Revolving Credit Loans or Swing Line Loans (or, if no such Loans are outstanding, deposit cash collateral in an account with the Administrative Agent on terms reasonably satisfactory to the prepayment Administrative Agent) in an aggregate amount equal to such excess. If the Aggregate Revolving Credit Extensions of Credit and Swing Line Loans on the last Business Day of any week, solely by reason of currency fluctuations, shall exceed 105% of the total Revolving Credit Commitments (including after giving effect to any reductions in the Revolving Credit Commitments pursuant to Section 5.4(a)), then the Company shall, not later than the next Business Day, prepay Revolving Credit Loans and Swing Line Loans in accordance with the amount necessary to eliminate such excess.
(h) The Company shall give the Administrative Agent (which shall promptly notify each Lender) notice as specified in Section 2.11(b). The application 5.5 of any each prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.to
Appears in 1 contract
Samples: Loan Agreement (B/E Aerospace Inc)
Mandatory Prepayments. (aA) Unless Immediately upon the Required Lenders otherwise agreeoccurrence of a Change of Control, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with prepay all of the provisions of Section 5.9outstanding Obligations, to plus the extent applicableapplicable Prepayment Premium, with respect to any assets acquired if any;
(B) Immediately upon the receipt by any Group Member Obligor of any Net Proceeds from the incurrence of any Debt (other than Debt permitted to be incurred or issued pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beSection 6.3), (y) a Permitted Acquisition (so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds from such incurrence of Debt plus the applicable Prepayment Premium, if any;
(C) Immediately upon the occurrence of any incurrence of Indebtedness of any Loan Party Permitted Asset Disposition pursuant to clause (excluding any Indebtedness permitted to be incurred under Section 6.2c) shall be applied to the prepayment of the Loans as set forth definition thereof, the Borrower agrees to prepay the Obligations in Section 2.5(f) on the date of such incurrence. An an amount equal to 100% of the Net Cash Proceeds of any incurrence of from such Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9Asset Disposition plus, to the extent applicable, the exit fee pursuant to Item 5 of the Terms Schedule (provided, for the avoidance of doubt, that no Prepayment Premium shall apply with respect to any assets acquired by any Group Member prepayment of the Obligations pursuant to such Board-Approved Investment or Proceeds Investmentthis clause (C));
(D) Immediately upon any Obligor suffering an Event of Loss of any property, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of the Net Proceeds from such Net Cash Proceeds minus Event of Loss plus the amount applicable Prepayment Premium, if any; provided, that if the Borrower notifies the Agent upon or prior to receipt of such Net Cash Proceeds that the Borrower intends to replace or repair the property in respect of which such Net Proceeds are received, then the Borrower may apply all or any part of such Net Proceeds to such replacement or repair of property, so long as (i) no Event of Default shall have occurred and be continuing, and (ii) such Net Proceeds are actually applied to such replacement or repair within 180 days of receipt (or committed in writing to be so applied within 180 days of receipt and deposited in an escrow account of the Indebtedness under the Exit Facility Agreement shall be applied Borrower until so applied), and provided, further, that to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of extent any such Net Cash Proceeds by any Group Member; provided that no prepayment are not actually so applied within the time periods specified in the foregoing clause (ii) or an Event of Default shall have occurred and be continuing before such Net Proceeds have been so applied or committed in writing to be applied, then such Net Proceeds shall be immediately applied to prepay the Obligations;
(E) Upon the completion of the Loans Initial Public Offering and immediately upon the receipt by Holdings of the net proceeds thereof, the Borrower shall be required to be made pursuant to this subsection until prepay the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, Obligations in an amount equal to Two Million Three Hundred Seventy-Five Thousand Dollars ($2,375,000.00) plus the Reinvestment applicable Prepayment Amount with respect Premium;
(F) (E) Each prepayment of the Obligations pursuant to the relevant Reinvestment Event foregoing provisions of Section 1.2(a)(iv)(A)-(DE) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans 1.7; and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Loan Agreement (Heritage Distilling Holding Company, Inc.)
Mandatory Prepayments. Borrower shall be required to make prepayments (“Mandatory Prepayments”) in each of the following events (a) Unless in the event any of the Collateral is the subject of a Casualty Event, a Mandatory Prepayment equal to the amount of the Casualty Proceeds received by Borrower, Survivor, or Subsidiary Merger Survivor on account thereof (provided that no such Mandatory Prepayment shall be required to the extent that Borrower, Survivor, or Subsidiary Merger Survivor, as applicable, use such Casualty Proceeds for repair or replacement for any Casualty Event if the amount of Casualty Proceeds does not exceed $25,000,000.00, or such higher amount as may be approved by the Required Lenders otherwise agreeat their discretion, and so long as (i) a contract for such repair or replacement is entered into within 180 days of such Casualty Event for such repairs and/or the acquisition of such replacements, (ii) such repair or replacement is effected within 360 days of such Casualty Event, and (iii) any such replacements are covered by the lien in favor of the Administrative Agent on the Collateral); (b) upon the issuance of any equity securities in a capital raising transaction resulting in net proceeds to Borrower of an amount in excess of $10,000,000.00, a Mandatory Prepayment equal to fifty percent (50% %) of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date net proceeds of such issuance offering of equity securities to the extent such Net Cash Proceeds they are not used prior used, under the conditions set forth below, for acquisitions and/or capital investment within 360 days of receipt; (c) upon sale or other disposition of any non-current assets (except for sales in the ordinary course of business) which are a part of the Collateral other than Collateral with respect to such 121st day which the lien is released pursuant to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.910.23 hereof, a Mandatory Prepayment equal to one hundred percent (100%) of the net proceeds in excess of $5,000,000 received by Borrower, Survivor, or Subsidiary Merger Survivor to the extent applicablethat they are not used, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)below, then for acquisitions and/or capital investment within 360 days of receipt by Borrower, Survivor, or Subsidiary Merger Survivor, as applicable, which are covered by a lien in favor of the Payment Date shall Administrative Agent; and (d) at any time that the aggregate outstanding principal balance owing (i) under the 7 Year Revolving Loan and the 10 Year Revolving Loan (including the Converted Loans) exceeds the Available Amount or (ii) under either the 7 Year Revolving Loan or the 10 Year Revolving Loan (including the 7 Year Converted Loans or the 10 Year Converted Loans, as applicable) exceeds the Aggregate 7 Year Commitment or the Aggregate 10 Year Commitment, respectively, as either of them may be extended reduced from time to time, a Mandatory Prepayment equal to the 181st day after amount of such incurrenceexcess. In each case of proceeds from any offering of equity securities and from any sale or other disposition of Collateral, to avoid Mandatory Prepayment based thereon, Borrower, Survivor, or Subsidiary Merger Survivor, as applicable, must, within 180 days of receipt of such proceeds, have used such proceeds for acquisitions and/or capital investments or executed a binding definitive contract for such acquisitions and/or capital investments. Mandatory Prepayments made (x) pursuant to clause (d) of this Section and on such day the relevant Net Cash Proceeds shall be applied to the prepayment Converted Loans or (z) pursuant to clauses (a) and (b) of this Section, will, in either case, result in a permanent reduction of the Loans as specified above Aggregate 7 Year Commitment and the Aggregate 10 Year Commitment to the extent of the Mandatory Payments applied to each such Net Cash Proceeds are not used prior to such 181st day to consummate Facility. Mandatory Prepayments under clauses (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investmenta), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionb), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2c) shall be applied due no later than 10 Banking Days after the expiration of the applicable acquisition or capital investment period set forth above, and Mandatory Prepayments under (d) shall be due the next Banking Day following such occurrence. In determining the amount of Mandatory Prepayment required under clauses (a) or (c), Borrower shall be permitted to make any prepayment required on account of such Casualty Event or sale under any Pari Passu Loan (in a maximum amount no greater than the pro rata portion based on total outstanding principal balances of such loan and the Facilities), and in determining the amount of Mandatory Prepayment required under clause (b), Borrower shall, without duplication regarding payments made on account of any Pari Passu Loan, be permitted to make any prepayment required on account of such sale under any secured or unsecured credit facility which is not expressly subordinate to the prepayment of the Loans as set forth Facilities in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicablemaximum amount, with respect to any assets acquired by any Group Member pursuant only to such Board-Approved Investment or Proceeds Investmentunsecured facilities, as of no greater than the case may be), (y) a Permitted Acquisition (so long as pro rata portion based on the Borrower shall have complied with the provisions of Section 5.9, total outstanding principal balances owing under such unsecured facility to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment sum of the Indebtedness total outstanding principal balances owing under all such unsecured facilities and under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesFacilities.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice Section 7.1 is delivered amended in its entirety to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans read as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.follows:
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal If a Change of Control occurs that has not been consented to 50% of the Net Cash Proceeds of any issuance of Capital Stock in writing by any Loan Party shall be applied Agent prior to the prepayment of consummation thereof, on or prior to the Loans as set forth in Section 2.5(f) on the 121st day after first Business Day following the date of such issuance to Change of Control, Borrower shall prepay the extent such Net Cash Proceeds Loan and all other Obligations (other than, indemnity obligations that are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment then due and payable or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant which no claim has been made) in full in cash together with accrued interest thereon to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal prepayment and all other amounts owing to 100% Agent and Lenders under the Loan Documents and the Revolving Advance Prepayment Additional Interest and Term Loan Prepayment Additional Interest that would be payable on such date, and whereupon the Revolving Loan Commitments shall be terminated; provided, that if such Change of Controlevent occurs during the first twelve months following the Closing Date as a result of a Change of Control occurring pursuant to clause (iii) of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any definition thereofon or prior to May 14, the2021, Borrower shall prepay the Loan Party shall be applied and all other Obligations (other than, indemnity obligations that are not then due and payable or with respect to the prepayment of the Loans as set forth which no claim has been made) in Section 2.5(f) on the 121st day (the “Payment Date”) after full in cash together with accrued interest thereon to the date of such incurrence (as such date may be extended pursuant to prepayment and all other amounts owing toalso pay Agent and, for the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment benefit of the Indebtedness Lenders under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment DateLoan Documents, an amount equal to the Reinvestment Prepayment Amount sum of the Revolving Commitment Lockout Period Additional Interest and the Term Loan Lockout Period Additional Interest that would be payable on such date; provided, further, that any such prepayment shall be in compliance with Section 6.16 hereof.
(b) In addition to and without limiting any provision of any Loan Document, if Borrower, in any transaction or series of related transactions, (a) sells any Pledged Lease or other material assets or other properties, (b) sells or issues any equity or debt securities, Equity Interests or other ownership interests other than, in each case, to Holdings or (c) incurs any Indebtedness except for Permitted Indebtedness, then it shall deposit 100% (or such lesser amount as is required to indefeasibly pay in cash in full the Obligations (other than indemnity obligations that are not then due and payable or with respect to which no claim has been made)) of the relevant Reinvestment Event shall be applied cash proceeds thereof (net of reasonable transaction costs and expenses and taxes) to the prepayment of Collateral Account, and the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; Revolving Advance Prepayment Additional Interest provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described for in clause (i) of the definition thereof thereof, provided, that if such event occurs on or prior to May 14, 2021, Borrower shall be excluded also pay Agent, for the benefit of the Lenders, an amount equal to the amount of interest that would have accrued on the sum of the principal balance of the Loan plus projected further utilization of the Loan hereunder (as determined by Agent in determining its Permitted Discretion), from such date of prepayment to May 14, 2021, at a per annum rate equal to the Calculated Rate.
(c) In no event shall the sum of the aggregate Net Cash Proceeds subject outstanding principal balance of the Revolving Loan Advances exceed the lesser of (i) the Borrowing Base and (ii) the Maximum Revolving Loan Amount. If at any time and for any reason, the outstanding unpaid principal balance of the Revolving Loan exceedsAdvances exceed the Maximum Revolving Loan Amount, Borrower shall promptly, and in any event within five (5) Business Days, without the necessity of any notice or demand, whether or not a Default or Event of Default has occurred or is continuing, prepay the principal balance of the Loan in an amount equal to the limitations set forth difference between the then aggregate outstanding principal balance of the Revolving Loan Advances and the Maximum Revolving Loan Amount. If at any time and for any reason, the outstanding unpaid principal balance of the Loan exceeds the Borrowing Base (including due to any Eligible Lease thereafter failing to meet the eligibility criteria and becoming an Ineligible Lease; provided, however, that if such Lease is an Ineligible Lease solely as a result of a Regulatory Trigger Event described in clause (xxixxxx) of the definition of “Eligible Leases” Borrower shall have forty five (45) calendar days after the earlier of its discovery or receipt of notice thereof to comply with this clause(c) of Section 2.6), then Borrower shall without the necessity of any notice or demand, whether or not a Default or Event of Default has occurred or is continuing, either (x) prepay the principal balance of the Loan in an amount equal to the difference between the then aggregate outstanding principal balance of the Loan and the Borrowing Base or (y) increase the aggregate principal balance of Eligible Leases pledged to Agent in accordance with this sentence.
(d) Unless Agreement so that the Required Lenders Borrowing Base is equal to or exceeds the then outstanding principal balance of the Loan. The pledge and delivery to Agent of additional Eligible Leases shall otherwise agree, commencing comply with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as document delivery requirements set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agreeSections 2.9 and 4.2 of this Agreement, commencing with the fiscal year of the Borrower ending December 31as applicable, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 and shall be accompanied by accrued interest a certification from Borrower that demonstrates that after giving effect to the date pledge to Agent of such prepayment on additional Eligible Leases, the amount prepaidoutstanding unpaid principal balance of the Loan is equal to or less than the Borrowing Base.
Appears in 1 contract
Samples: Loan and Security Agreement (FinServ Acquisition Corp.)
Mandatory Prepayments. (a) Unless Without limiting the Required requirements of Section 7.5 hereof regarding the consent of Majority Lenders otherwise agreeto sales of property by Restricted Persons which are not permitted by Section 7.5, the proceeds of any sale of property (net of all reasonable costs and expenses, but excluding proceeds consisting of tangible property to be used in the business of Restricted Persons) by any Restricted Person (other than a sale of property permitted under Section 7.5 hereof) shall be placed in a collateral account under the control of Administrative Agent in a manner satisfactory to Administrative Agent immediately upon such Restricted Person's receipt of such proceeds and maintained therein for a period of ninety (90) days following the date of receipt thereof in cash (in this Section 2.7(a) referred to as the "Collateral Period"). If any consideration consists of an instrument or security, the Collateral Period shall, with respect to each amount of cash received in respect thereof, continue until ninety (90) days following such Restricted Person's receipt of such cash unless, pursuant to the following sentence, an approved investment included such cash; any cash in a collateral account may be invested in Cash Equivalents designated by Borrower. During each Collateral Period, Borrower may propose to invest such proceeds in other property subject to the approval of Majority Lenders, and shall thereafter invest such proceeds in such property so approved by Majority Lenders. At the end of each Collateral Period or, if an investment is so proposed and approved during such Collateral Period, within one hundred-eighty (180) days after such proposed investment has been so approved by Majority Lenders, any such proceeds which have not been so invested by Borrower shall be applied pro rata to the reduction of the outstanding principal balance of the Term Loans and the Revolver Loans at such time, and the Revolver Commitment shall be reduced by an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be prepayment applied to the prepayment Revolver Loans. Thereafter, the Revolver Reduction Amount shall equal the quotient of (i) the Loans as set forth in Section 2.5(f) on Revolver Commitment at the 121st day after the date time of such issuance application minus the amount of such application allocated to the extent such Net Cash Proceeds are not used prior to such 121st day to make Revolver Loan divided by (vii) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with number of Fiscal Quarters remaining until the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesRevolver Maturity Date.
(b) Unless If at any time the Required Lenders shall otherwise agree and except as set forth Facility Usage exceeds the Revolver Commitment (whether due to a reduction in the Revolver Commitment in accordance with this Agreement, or otherwise), Borrower shall immediately succeeding sentence with respect to upon demand prepay the incurrence principal of Permitted Subordinated Indebtedness, the Revolver Loans in an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loanssuch excess. Each prepayment of the Loans principal under this Section 2.5 section shall be accompanied by all interest then accrued and unpaid on the principal so prepaid. Any principal or interest prepaid pursuant to this section shall be in addition to, and not in lieu of, all payments otherwise required to be paid under the date Loan Documents at the time of such prepayment on the amount prepaidprepayment.
Appears in 1 contract
Mandatory Prepayments. (a) Within 10 Business Days after the consummation of any sale or other disposition of Property (including the sale or other disposition of Receivables) by the Borrower or any Subsidiary if the aggregate fair market value of the consideration received by the Borrower or its Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Subsidiaries for all other such sales or other dispositions consummated during the period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, exceeds $25,000,000, the Borrower shall deliver an Officer’s Certificate to the Administrative Agent and the Lenders (notifying the Administrative Agent and the Lenders thereof and certifying the amount of Net Cash Proceeds received from such sales or other dispositions during such period). Unless within 5 Business Days after receipt of such Officer’s Certificate the Administrative Agent, on behalf of the Required Lenders, shall have notified the Borrower of the Required Lenders’ election to forego prepayment, then on the date that is 7 Business Days after the date on which the Borrower shall have delivered such Officer’s Certificate to the Administrative Agent and the Lenders otherwise agree, the Borrower shall make a prepayment of the Loans in an amount equal to 50the Ratable Share of the amount of Net Cash Proceeds certified in such Officer’s Certificate (or such lesser principal amount as shall then be outstanding), at 100% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to principal amount so prepaid. Notwithstanding the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureforegoing, (wi) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal up to 100% of the Net Cash Proceeds of such sales or other dispositions with respect to which the Borrower shall have given the Administrative Agent written notice (set forth in the applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (a)) of its intention to repair or replace the Property subject to any incurrence such sale or other disposition or invest such Net Cash Proceeds in the purchase of Indebtedness Property (other than securities, unless those securities represent equity interests in an entity that becomes a Guarantor or a JV Entity permitted hereunder (and provided that if such Guarantor or JV Entity is a newly formed Person, such Person shall promptly use the portion of any Loan Party (excluding any Indebtedness permitted the Net Cash Proceeds received by it for the sale of its equity interests in order to purchase Property to be incurred under Section 6.2used by it in its business)) to be used by one or more of the Borrower or the Guarantors in their businesses (such repair, replacement or investment referred to as a “Reinvestment”) within six (6) months following such sale or other disposition, shall not be subject to the provisions of the first two sentences of this clause (a) unless and to the extent that such applicable period shall have expired without such repair, replacement or investment having been made, and (ii) only the Net Cash Proceeds from sales or other dispositions of Property (including the sale or other disposition of Receivables) with a fair market value of the consideration received therefor in excess of $25,000,000 (above and beyond the fair market value of the consideration of the dispositions of the Property with respect to which the Net Cash Proceeds shall have been subject to Reinvestment) shall be applied subject to the prepayment provisions of the first two sentences of this clause (a).
(b) Any prepayments made by the Borrower pursuant to Section 2.12(a) above shall be applied by the Administrative Agent as follows: first to repay Term Loans on a pro rata basis as to each of Term Loan A and Term Loan A-1 (with the application of such prepayment to be, as to each of Term Loan A and Term Loan A-1, to the remaining scheduled principal installments owing in respect of such Term Loan under Section 2.9(c) on a pro rata basis (including the final installment due and payable on each such Term Loan)), second, to repay outstanding Swingline Loans and third to repay outstanding Revolving Loans. All prepayments in respect of Revolving Loans required under clause (b) shall be accompanied by a concurrent, automatic, irrevocable reduction and partial termination of the Revolving Commitments in an amount equal to such required prepayment, with such reduction and partial termination allocated ratably among the Lenders in proportion to their respective Pro Rata Share.
(c) If at any time the Revolving Credit Exposure of all Lenders exceeds the lesser of (i) the Aggregate Revolving Commitment and (ii) the Borrowing Base, in each case, then in effect, the Borrower shall immediately repay Revolving Loans in an amount equal to such excess (or, if such excess exceeds $10,000,000, the Ratable Share of such excess), together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment shall be applied first to the Base Rate Loans to the full extent thereof, and next to Eurodollar Loans to the full extent thereof. If such excess (or if the excess is greater than $10,000,000, the Ratable Share of such excess) is greater than the outstanding principal amount of the Revolving Loans, the Borrower shall Cash Collateralize its reimbursement obligations with respect to the Letters of Credit by depositing cash collateral in an amount equal to such excess (or, if the excess is greater than $10,000,000, the Ratable Share of the remaining excess) plus any accrued and unpaid fees thereon into a special collateral account pursuant to arrangements satisfactory to the Administrative Agent (the “LC Collateral Account”) at the Payment Office, in the name of the Borrower but under the sole dominion and control of the Administrative Agent, for the benefit of the Lenders and in which the Borrower shall have no interest other than as set forth in Section 2.5(f) 8.2. The Borrower hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the date of such incurrence. An amount equal to 100% ratable benefit of the Net Cash Proceeds Lenders and the Issuing Bank, a Lien in all of the Borrower’s right, title and interest in and to all funds which may from time to time be on deposit in the LC Collateral Account to secure the prompt and complete payment and performance of the Obligations. The Administrative Agent will invest any incurrence funds on deposit from time to time in the LC Collateral Account in certificates of Permitted Subordinated Indebtedness deposit of any Loan Party SunTrust Bank having a maturity not exceeding 30 days. The LC Collateral Account shall be applied to the prepayment of the Loans as set forth administered in accordance with Section 2.5(f2.22(g) on the 121st day (the “Payment Date”) hereof. If, after the date of such incurrence (as such date may be extended that the Borrower Cash Collateralizes its reimbursement obligations pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted PaymentSection, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with Revolving Credit Exposure of all Lenders is less than the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment lesser of the Indebtedness under (i) Aggregate Revolving Commitment and (ii) the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds InvestmentBorrowing Base, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)in each case, then the Payment Date shall be extended to the 181st day after such incurrencein effect, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment for a period of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within at least ten (10) consecutive Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceDays, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) no Default or Event of Default then exists, the funds in the aggregate during any fiscal year of LC Collateral Account shall be released by the Administrative Agent to the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (ai) Unless In the Required Lenders otherwise agreeevent and on such occasion that the aggregate Global Revolving Exposures or aggregate U.S. Revolving Exposures exceed the aggregate Revolving Commitments of such Class, the Borrower shall prepay Revolving Borrowings of such Class or, if applicable, Swingline Loans of such Class (or, if no such Borrowings are outstanding, deposit cash collateral in an account with the Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beexcess), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on any such 121st day excess shall result from a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect change in the applicable exchange rates relating to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)Alternative Currencies, then such prepayment and/or cash collateralization shall only be required to be made by the Payment Date shall be extended to Borrower upon one Business Day’s notice from the 181st day after such incurrenceAdministrative Agent.
(ii) Other than during a Covenant Suspension Period, and on such day the relevant (A) if Parent or any Subsidiary receives any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of from any Asset Sale or Recovery Event that results from Casualty Event, the sale or other disposition of, or payment with respect to, any of the Collateral, Borrower shall apply an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied in accordance with Section 2.10(b)(v) on or prior to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within date which is ten (10) Business Days after the day date of the realization or receipt of any 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 by that Parent or any Group MemberSubsidiary shall reinvest in accordance with Section 2.10(b)(ii)(B); provided that no prepayment (x) the foregoing proviso shall not apply to any Asset Sale made in reliance on Section 6.11(j)(ii)(y); and (y) to the extent required by the terms of any Permitted Secured Notes that are secured by Liens subject to the First Lien Intercreditor Agreement, the Borrower may, in lieu of prepaying Term Loans with such portion of the Loans shall be required Net Cash Proceeds of any Asset Sale or Casualty Event, apply a portion of such Net Cash Proceeds (based on the respective principal amounts at such time of (A) such Permitted Secured Notes and (B) the Term Loans) to be made pursuant repurchase or redeem Permitted Secured Notes that are secured by Liens subject to this subsection until the First Lien Intercreditor Agreement with the remaining amount of such Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000Term Loans; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (ai) Unless If at any time, the Required Lenders otherwise agreeTerm Loan A Amount is redetermined in accordance with SECTION 2.2(a)(iii) and, as a result thereof, the outstanding principal amount of the Term Loan A is in excess of the Term Loan A Amount, Borrowers shall within 5 Business Days of such redetermination pay to Agent an amount equal to 50% such excess, to be applied pro rata to the remaining principal installments of the Net Cash Proceeds Term Loan A.
(ii) Upon the occurrence of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment Permitted Disposition described in clause (f) or (h) of the Loans as set forth in Section 2.5(f) on definition of Permitted Disposition, Borrowers shall repay the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment outstanding amount of the Indebtedness under Term Loan A (or if such Term Loan A is repaid in full, the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment outstanding amount of the Loans as specified above to Term Loan B and if such Term Loan B is repaid in full, the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (xObligations in accordance with SECTION 2.4(b)) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of net cash proceeds received (after deducting therefrom reasonable expenses related thereto) by any Loan Party in connection therewith, the amount of such repayment to be applied pro rata to the remaining principal installments of the Term Loan A.
(excluding iii) Upon the issuance or incurrence by AMTROL Portugal of any Indebtedness permitted in excess of (pound sign)12,000,000, Borrowers shall repay the outstanding amount of the Term Loan B (or if such Term Loan B is repaid in full, the outstanding amount of the Term Loan A and if such Term Loan A is repaid in full, the Obligations in accordance with SECTION 2.4(b)) in an amount of 100% of such excess incurred (after deducting therefrom reasonable expenses related to the incurrence of such Indebtedness) by any Loan Party in connection therewith. The provisions of this subsection (iii) shall not be deemed to be incurred under Section 6.2implied consent to any such issuance, incurrence or sale otherwise prohibited by the terms and conditions of this Agreement.
(iv) shall be applied to Upon the prepayment consummation of the Loans as set forth transaction described in Section 2.5(fclause (g) on of the date definition of Permitted Disposition, Borrowers shall repay the outstanding amount of the Term Loan B (or if such incurrence. An Term Loan B is repaid in full, the outstanding amount of the Term Loan A and if such Term Loan A is repaid in full, the Obligations in accordance with SECTION 2.4(B)) in an amount equal to 100% of the Net Cash Proceeds net cash proceeds of any incurrence such transaction (after deducting therefrom reasonable expenses related thereto) in connection therewith, the amount of Permitted Subordinated Indebtedness such repayment to be applied pro rata to the remaining principal installments of the Term Loan B.
(v) Upon the receipt by any Loan Party shall be applied of any payment for any loss under any insurance policy or any award or compensation for condemnation or taking by eminent domain in respect of any Equipment or Real Property Collateral, which payment the Required Lenders elect, pursuant to SECTION 6.8, to apply to the prepayment of the Loans as set forth in Section 2.5(f) on Obligations, Borrowers shall repay the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment outstanding principal of the Indebtedness under Term Loan A (or if such Term Loan A is repaid in full, the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment outstanding amount of the Loans as specified above to Term Loan B and if such Term Loan B amount is repaid in full, the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (xObligations in accordance with SECTION 2.4(b)) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the net cash proceeds received (after deducting therefrom reasonable expenses related thereto) by any Loan Party in connection therewith, the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds repayment to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant pro rata to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment remaining principal installments of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.Term Loan A.
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Mandatory Prepayments. (a) Unless If any Loan Party or any Subsidiary Disposes of any property or assets (other than inventory in the Required Lenders otherwise agreeordinary course of business), the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 50100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (f) below); provided, that so long as no Default or Event of Default exists, (i) the Loan Parties and the Subsidiaries may receive Net Cash Proceeds in an aggregate principal amount of up to (x) until the occurrence of the TLA Termination Date, $10,000,000, and (y) on and following the occurrence of the TLA Termination Date, the greater of (x) $30,000,000 and (y) 10% of Consolidated Adjusted EBITDA, in each case, in the aggregate for all such transactions in any Fiscal Year without making the prepayment described in this Section 5.3(a), and (ii) any Borrower or Subsidiary may reinvest all or any portion of the Net Cash Proceeds received by such Person from any such Disposition in fixed capital or operating assets, including real property (which reinvested amount shall not count against the respective threshold set forth in clause (i) above), so long as (A) if any of the property or assets Disposed of constitute Collateral, the reinvestment must be in fixed capital or operating investments that also constitute Collateral and the Administrative Agent must have a perfected Lien in such assets, (B) within (x) until the occurrence of the TLA Termination Date, 180 days, and (y) on and following the TLA Termination Date, twelve (12) months, in each case, after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (C) if a definitive agreement to so reinvest has been executed within such period referenced in clause (B) above, then such reinvestment shall have been consummated within (x) until the occurrence of the TLA Termination Date, 180 days, and (y) on and following the TLA Termination Date, six (6) months, in each case, after the entering into of such definitive agreement; and provided, further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be, upon the conclusion of the applicable period, immediately applied to the prepayment of the Loans (such prepayments to be applied as set forth in clauses (f) below) in an amount equal to such Net Cash Proceeds as set forth in this Section 5.3(a); provided, however, that, notwithstanding the foregoing, on and following the TLA Termination Date, if such Net Cash Proceeds are received on account of the sale or other Disposition of any property or assets having a fair market value, for any individual sale or series of related sales, of less than $5,000,000 then no prepayment shall be required in respect of such Net Cash Proceeds.
(b) Upon the incurrence or issuance of Capital Stock by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 9.2 (including, without limitation, Section 9.2(h))), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the date of such receipt thereof by any Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (f) and (g) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of (x) until the TLA Termination Date, $500,000, and (y) on and following the TLA Termination Date, the greater of (x) $30,000,000 and (y) 10% of Consolidated Adjusted EBITDA, in each case, in the aggregate for any Fiscal Year, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the date of such receipt by such Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (f) and (g) below); provided that with respect to any Net Cash Proceeds of an Extraordinary Receipt, at the election of the Borrowers, and so long as no Event of Default shall have occurred and be continuing, such Borrower or such Subsidiary may (A) utilize any Net Cash Proceeds constituting proceeds of casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such property prior to the casualty event, or (B) reinvest all or any portion of such Net Cash Proceeds in fixed capital or operating assets, in each case of clause (A) or (B) so long as (x) within (1) until the occurrence of the TLA Termination Date, 180 days, and (2) on and following the TLA Termination Date, twelve (12) months, in each case, after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such applicable period set forth in clause (x), then such repair, rebuilding or reinvestment shall have been consummated within (x) until the occurrence of the TLA Termination Date, 180 days, and (y) on and following the TLA Termination Date, six (6) months, in each case, after the entering into of such definitive agreement; and provided further that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.5(f5.3(c) on the 121st day after the date of (such issuance prepayments to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long be applied as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth thereinin clauses (f) below).
(d) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then the Payment Date shall be extended to the 181st day after such incurrenceBorrowers shall, and on such day the relevant Net Excess Cash Proceeds shall be applied to Flow Application Date (as defined below), apply toward the prepayment of the Loans as specified above in an amount equal to the excess of (x) the ECF Percentage of such Excess Cash Flow over (y) solely to the extent not funded with the proceeds of long-term Indebtedness, the aggregate amount of all optional prepayments of the Loans and other Pari Passu Secured Indebtedness made during such Excess Cash Flow Period. Each such prepayment shall be made on a date (an “Excess Cash Flow Application Date”) no later than ten (10) Business Days after the earlier of (i) the date on which the financial statements of the Borrowers referred to in Sections 8.1(a), for the Excess Cash Flow Period with respect to which such prepayment is made, are required to be delivered to the Lenders and (ii) the date such financial statements are actually delivered, in each case, together with the delivery of the related Compliance Certificate pursuant to Section 8.2(a), thereby calculating the amount of the Excess Cash Flow Amount for such applicable Excess Cash Flow Period. Notwithstanding the foregoing, prepayments under this clause (d) shall only be required to the extent such Net Cash Proceeds are not used prior prepayments would result in the payment of an amount greater than $50,000,000 in any fiscal year (and only amounts in excess of $50,000,000 shall be required to be prepaid in any fiscal year) (such 181st day prepayments to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except be applied as set forth in clause (f) below).
(e) If the immediately succeeding sentence with respect Borrower incurs or issues any Refinancing Loans resulting in Net Cash Proceeds (as opposed to such Refinancing Loans arising out of an exchange of any existing Loans for such Refinancing Loans), the incurrence Borrowing Agent shall cause to be prepaid an aggregate principal amount of Permitted Subordinated Indebtedness, the applicable Refinanced Debt in an amount 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 by the Borrower of such Net Cash Proceeds; provided that prepayments pursuant to this Section 5.3(e) in connection with a Repricing Transaction shall be accompanied by any fees payable with respect thereto pursuant to Section 5.2(c).
(f) Each prepayment of Loans pursuant to (I) Section 5.3(a) through (d) above, from Net Cash Proceeds or Excess Cash Flow, as applicable, (A) shall be applied either (x) ratably to each Class of Loans then outstanding or (y) as requested by the Borrowing Agent in the notice delivered pursuant to clause (g) below, and to the extent permitted pursuant to sub-clause (2) of clause (g) hereof, to any Class or Classes of Loans with a Maturity Date preceding the Maturity Date of the other Classes of Loans then outstanding, (B) shall be applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the Borrowing Agent in the applicable notice and, if not specified, in direct order of maturity to repayments thereof and (C) shall be paid to the Appropriate Lenders in accordance with their respective Applicable Percentage (or other applicable share provided by this Agreement) of each such Class of Loans, subject to this clause (f) of this Section 5.3; provided that if, at the time that any such prepayment would be required hereunder, the Borrowers or any of their respective Subsidiaries are required to repay or repurchase with the Net Cash Proceeds any other Indebtedness (or offer to repay or repurchase such Indebtedness) that is secured on a pari passu basis with the Obligations pursuant to the terms of any incurrence of the documentation governing such Indebtedness, including, without limitation the Loans (as defined in the Existing Credit Agreement) under the Existing Credit Agreement (such Indebtedness of any Loan Party (excluding any Indebtedness permitted required to be incurred under Section 6.2) shall so repaid or repurchased (or offered to be applied repaid or repurchased), the “Other Applicable Indebtedness”), then the relevant Person may apply such Net Cash Proceeds on a pro rata basis to the prepayment of the Loans as set forth in Section 2.5(f) and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the date basis of the aggregate outstanding principal amount of the Loans and the Other Applicable Indebtedness (or accreted amount if such incurrence. An amount equal to 100% Other Applicable Indebtedness is issued with original issue discount) at such time) (it being understood that (1) the portion of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied allocated to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Other Applicable Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to exceed the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member amount of the Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, in each case, determined by the product of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus (x) the amount of such Net Cash Proceeds applied and (y) a fraction, (A) the numerator of which is the outstanding principal amount of such Other Applicable Indebtedness and (B) the denominator of which is the sum of the outstanding principal amount of such Other Applicable Indebtedness and the outstanding principal amount of all Classes of Loans (and the remaining amount, if any, of the Net Cash Proceeds shall be allocated to the Indebtedness under Loans in accordance with the Exit Facility Agreement shall be applied to terms hereof), and the amount of the prepayment of the Loans as set forth that would have otherwise been required pursuant to this Section 5.3 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 Section 2.5(f) any event within ten (10) Business Days after the day date of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to rejection) be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with the terms hereof); it being understood and agreed that pending the reinvestment of such Net Cash Proceeds, such Net Cash Proceeds shall be held by the Borrower or its applicable Subsidiary and available for use for any purpose not expressly prohibited by this Agreement, and for general working capital purposes), and (II) Section 2.11(b). The 5.3(e) above from the Net Cash Proceeds, shall be applied in accordance with this clause (f) solely to the applicable Refinanced Debt and (2) any Incremental Amendment, Refinancing Amendment or Extension Amendment may provide (including on an optional basis as elected by the Borrowing Agent) for a less than ratable application of prepayments to any Class of Loans established thereunder; subject to Section 3.5, such prepayments shall be paid to the Lenders pro rata in accordance with Section 5.4.
(g) The Borrowing Agent shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made by the Borrower pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest 5.3 at least two (2) Business Days prior to the date of such prepayment (or on the date such prepayment is owed if such prepayment is owed on the same date the prepayment event occurred). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount prepaidof such prepayment to be made by the Borrowers. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrowing Agent’s prepayment notice and of such Appropriate Lender’s Applicable Percentage of the prepayment.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Construction Partners, Inc.)
Mandatory Prepayments. (i) Immediately upon any sale or disposition by Borrower or any of the Restricted Subsidiaries of property or assets (other than sales or dispositions of Inventory in the ordinary course of business or a sale of the Stock of HRC), Borrower shall either (a) Unless prepay the Required Lenders otherwise agree, an outstanding principal amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any obligations WFF Loan Party shall be applied to Agreement (and correspondingly reduce the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionlending commitments thereunder), or (z) Permitted Open Market Purchases.
(b) Unless prepay the Required Lenders shall otherwise agree and except as set forth outstanding principal amount of the Advances, in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, each case in an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied received by such Person in connection with such sales or dispositions to the prepayment extent that the aggregate amount of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied received by Borrower and the Restricted Subsidiaries (and not paid to WFF or the Agent as a prepayment of either the Loans as set forth obligations under the WFF Loan Agreement or of the Advances) for all such sales or dispositions exceeds $50,000 in Section 2.5(fany fiscal year, provided that (A) on if any such sale or disposition is a Permitted Disposition of Equipment that is not subject to a Lien of the 121st day type described in clause (e) of the “Payment Date”) after definition of "Permitted Liens", Borrower may elect to use the date proceeds of such incurrence (as such date may be extended pursuant sale or disposition, up to the proviso set forth at the end a maximum of this sentence) $400,000 during any fiscal year of Borrower, to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case purchase new Equipment so long as Borrower completes the Borrower shall have complied with the provisions purchase of Section 5.9, to the extent applicable, with respect to such new Equipment within 90 days of such sale or disposition; and (B) if any assets acquired by any Group Member pursuant to such Board-Approved Investment sale or Proceeds Investment, as the case may be), (y) disposition is a Permitted Acquisition Disposition of Equipment that is subject to a Lien of the type described in clause (e) of the definition of "Permitted Liens", Borrower may elect to use the proceeds of such sale or disposition to purchase new Equipment so long as Borrower completes the purchase of such new Equipment within 180 days of such sale or disposition. Nothing contained in this paragraph (i) shall permit Borrower shall have complied or any of the Restricted Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 7.4.
(ii) Upon the provisions receipt by Borrower or any of Section 5.9the Restricted Subsidiaries of any Extraordinary Receipts, to unless the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or WFF Loan Agreement requires the repayment of the Indebtedness under obligations thereunder from such Extraordinary Receipts, Borrower shall prepay the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment outstanding principal of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Advances in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts, to the extent that the aggregate amount of such Net Cash Proceeds applied Extraordinary Receipts (other than proceeds of insurance) received by Borrower and the Restricted Subsidiaries (and not paid to the Indebtedness under the Exit Facility Agreement shall be applied to the Agent as a prepayment of the Loans as set forth in Section 2.5(fAdvances) within ten (10) Business Days from and after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to Closing Date exceeds $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence300,000.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Respiratory Care Inc)
Mandatory Prepayments. (a) Unless In the Required Lenders otherwise agreeevent of any Asset Sale pursuant to Section 6.4(a), an amount equal to 50% the Borrowers shall, within five (5) Business Days after the receipt of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureAsset Sale, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to apply 100% of the Net Cash Proceeds of such Asset Sale first to prepay all amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7; provided that no prepayment shall be required under this Section 2.6(a) unless and until the aggregate Net Cash Proceeds received during any incurrence fiscal year from Asset Sales exceeds $250,000 in the aggregate (and only such amount in excess of Indebtedness of any Loan Party (excluding any Indebtedness permitted the foregoing threshold amount shall be required to be incurred under Section 6.2) shall be applied to prepay the prepayment Loans); provided further that so long as no Event of Default has occurred and is continuing, the recipient of such Net Cash Proceeds may reinvest such Net Cash Proceeds within three hundred sixty-five (365) days after receipt of such proceeds (or within one hundred eighty (180) days after such proceeds become subject to a binding commitment to reinvest such proceeds within three hundred sixty-five (365) days of receipt thereof), in assets of a kind used or useful in the business of a Borrower or any of its Subsidiaries. Subject to, and in addition to, the provisos in the preceding sentence, the Borrowers may (a) retain up to 50% of the Loans as set forth in Section 2.5(ffirst $10,000,000 of Net Cash Proceeds from an Approved Mitigation Bank Land Sale for working capital and general corporate purposes without having to make a mandatory prepayment with respect thereto and (b) retain any additional Net Cash Proceeds from an Approved Mitigation Bank Land Sale without having to make a mandatory prepayment with respect thereto; provided that (i) the Borrowers deliver a certificate to the Agent stating that such proceeds will be used to pay cash interest on the date Loans pursuant to Section 2.4(a) within ten (10) days of receipt thereof, (ii) such proceeds are deposited in a deposit account subject to the control of the Agent, and (iii) upon the earlier of (x) the expiration of the period specified in the relevant certificate furnished to the Agent or (y) the occurrence and continuance of an Event of Default, such proceeds, if not theretofore so used, shall be used to prepay the Loans.
(b) In the event of any Recovery Event, the Borrowers or any Subsidiary shall within five (5) Business Days after the receipt of Net Cash Proceeds of such incurrence. An amount equal to Recovery Event, apply 100% of the Net Cash Proceeds of such Recovery Event first to prepay all amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7; provided that that no prepayment shall be required under to this Section 2.6(b) unless and until the aggregate Net Cash Proceeds received during any incurrence fiscal year from Recovery Events exceed $250,000 in the aggregate (and only such amount in excess of Permitted Subordinated Indebtedness of any Loan Party the foregoing threshold amount shall be required to be applied to prepay the prepayment Loans); provided further that, and so long as no Event of Default has occurred and is continuing, the Loans as set forth in Section 2.5(frecipient (other than Agent) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such any Net Cash Proceeds are not used prior from a Recovery Event may reinvest such proceeds within three hundred sixty-five (365) days after receipt of such proceeds (or within one hundred eighty (180) days after such proceeds become subject to a binding commitment to reinvest such 121st day to make proceeds within three hundred sixty-five (v365) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions days of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bereceipt thereof), (y) in assets of a Permitted Acquisition (so long as kind used or useful in the business of a Borrower shall have complied with the provisions or any of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesits Subsidiaries.
(c) Unless In the Required Lenders event of any incurrence of Indebtedness by the Borrowers or the Subsidiaries (other than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 6.1), the Borrowers shall otherwise agree within five (5) Business Days apply 100% of the Net Cash Proceeds received with respect thereto to prepay amounts due under the Loans and unless a Reinvestment Notice the Applicable Repayment Fee thereon in accordance with Section 2.7.
(d) In the event of any public offering of Depositary Receipts, the Borrowers shall within five (5) Business Days, apply (i) in the case of the time period commencing on the Closing Date and ending on, and including, the date that is delivered the six (6) month anniversary of the Closing Date, 25%, (ii) in the case of the time period commencing on the date that is the day immediately following the six (6) month anniversary of the Closing Date and ending on, and including, the date that is the one (1) year anniversary of the Closing Date, 50%, and (iii) at any time thereafter, 75%, of the Net Cash Proceeds received with respect thereto to prepay amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7.
(e) The Agent shall deliver any notice of deposit it receives from the Borrowers under this Section 2.6 to the Administrative Agent Lenders within three (3) Business Days after Days. Following an Event of Default and during the day of receipt by a Group Member continuance thereof, subject to Section 5.5 of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Security Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event proceeds of Collateral, any payments made shall be applied (a) first, to pay all outstanding fees and other amounts owed to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 Agent and (yb) in second, on a pro rata basis, to all amounts due under the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b)Loans. The application of any Any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be 2.6 accompanied by the payment of any accrued interest to the date of such prepayment on the amount prepaidand unpaid interest.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Mandatory Prepayments. (a) Unless Borrower shall prepay the Required Lenders otherwise agreeLoans in amounts as provided below, an amount equal to 50% of the Net Cash Proceeds plus solely in respect of any issuance of Capital Stock by any Loan Party shall be applied to event specified in clauses (b)(ii) and (b)(iii) below, the prepayment Prepayment Premium on the then outstanding principal amount of the Loans as set forth being prepaid (calculated in accordance with Section 2.5(f) on 3.03(a), it being agreed that the 121st day after relevant payment date shall be deemed to be the date “Redemption Date” for purposes of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make calculation), plus any accrued but unpaid interest and fees then due and owing, as follows:
(vi) a Capital Expenditure, Within three (w3) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired days following receipt by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment Obligor of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter proceeds of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated IndebtednessCasualty Event, an amount equal to 100% of the Net Cash Proceeds net cash insurance or other proceeds received by Borrower with respect thereto; provided, however, so long as no Default or Event of any incurrence of Indebtedness of any Loan Party Default has occurred and is continuing, within two hundred and seventy (excluding any Indebtedness permitted 270) days (with such reinvestment to be incurred under Section 6.2subject to a binding commitment within at least one hundred and eighty (180) days) after receipt of such proceeds, Borrower may apply such net proceeds toward the replacement or repair of destroyed or damaged property; provided, further, that any such replaced or repaired property (i) shall be applied of equal or like value as the replaced or repaired Collateral and (ii) to the prepayment extent any property so replaced or repaired was subject to a first priority security interest in favor of the Loans as set forth Lenders at the time of the damage thereto or the destruction thereof shall be deemed Collateral in which Lenders have been granted a first priority security interest and Borrower shall take all such actions required to provide the Lenders with a first priority security interest on such property.
(ii) In the event Borrower incurs Indebtedness other than Indebtedness that is permitted by Section 2.5(f) on the date of such incurrence. An amount equal to 9.01 hereof, 100% of the Net Cash Proceeds net cash proceeds thereof received by Borrower. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(ii) shall not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any incurrence Event of Permitted Subordinated Indebtedness Default which occurs in connection therewith, it being understood that any such Event of any Loan Party shall Default may only be applied to waived with the prepayment express consent of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesMajority Lenders.
(ciii) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within Within three (3) Business Days after the day of days following receipt by a Group Member any Obligor of the Net Cash Proceeds net cash proceeds of any Asset Sale or Recovery Event that results from the sale or (excluding any Asset Sale permitted pursuant to Section 9.09 (other disposition of, or payment with respect to, any of the Collateralthan pursuant to Section 9.09(l)), an amount equal to 100% of the net cash proceeds received by Borrower with respect thereto; provided, however, so long as no Default or Event of Default has occurred and is continuing, within two hundred and seventy (270) days (with such Net Cash Proceeds minus the amount investment to be subject to a binding commitment within at least one hundred and eighty (180) days) after receipt of such Net Cash Proceeds applied proceeds, Borrower may invest such net cash proceeds in assets of the general type used in the business of the Obligors and their Subsidiaries; provided, further, that to the Indebtedness under extent any Property subject to such Asset Sale was subject to a first priority security interest in favor of the Exit Facility Agreement Lenders at the time of disposition shall be applied to the prepayment of the Loans as set forth deemed Collateral in Section 2.5(f) within ten (10) Business Days after the day of receipt of any which Lenders have been granted a first priority security interest and Borrower shall take all such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be actions required to be provide the Lenders with a first priority security interest on such property. For the avoidance of doubt, any prepayment made pursuant to this subsection until the amount of Net Cash Proceeds Section 3.03(b)(iii) shall not be deemed to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect consent to any single such Asset Sale or Recovery Eventa cure or waiver of any Event of Default which occurs in connection therewith, $30,000,000 and (y) in it being understood that any such Event of Default may only be waived with the aggregate during any fiscal year express consent of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with Majority Lenders. All prepayments made pursuant to this Section 2.5 3.03(b) shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid4.01(b)(ii).
Appears in 1 contract
Mandatory Prepayments. (ai) Unless Subject to clause (iii), upon the Required Lenders otherwise agreesale, an amount equal to 50% transfer or other disposition of any assets (or group of related assets) by the Company or any Subsidiary outside of the Net Cash Proceeds ordinary course of any issuance of Capital Stock by any Loan Party shall be applied to its business, the prepayment Company shall, within one Business Day of the Loans as set forth in Section 2.5(f) on Company's or such Subsidiary's receipt of the 121st day after proceeds thereof, prepay the outstanding principal amount of the $9.3 Million Closing Date Loan, together with accrued and unpaid interest to the date of such issuance to prepayment on the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureamount so prepaid, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of therefrom; PROVIDED, HOWEVER, that any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to such prepayment shall not be incurred under Section 6.2) shall be applied required if the Net Cash Proceeds from such sale, transfer or other disposition, when added to the prepayment Net Cash Proceeds arising from all other such transactions in the same fiscal year, is less than $100,000.
(ii) Subject to clause (iii), within one Business Day of receipt by the Company of the Loans as set forth Net Cash Proceeds from a financing described in Section 2.5(f2.05(b), (and, if received by the Company on or prior to the Additional Commitment Availability Expiry Date, to the extent such Net Cash Proceeds exceed the unused Additional Commitment) on the Company shall prepay the outstanding principal amount of the $9.3 Million Closing Date Loan together with accrued and unpaid interest to the date of such incurrence. An prepayment on the amount so prepaid, in an amount equal to 100% of the Net Cash Proceeds therefrom; PROVIDED, HOWEVER that no such prepayment shall required upon (A) any such issuance and sale of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended equity securities pursuant to the proviso set forth at transactions contemplated by the end of this sentence) to Securities Purchase Agreement and the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have other documents entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition)connection therewith, or (zii) Permitted Open Market Purchasesany such issuance and sale of equity securities of the Company pursuant to a stock option plan or restricted stock purchase plan approved by the Compensation Committee of the Company's Board of Directors, including the approval of the members of the Compensation Committee elected or otherwise designated by Durus.
(ciii) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered Notwithstanding anything therein to the Administrative Agent within three (3) Business Days after contrary, the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an aggregate principal amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant prepaid under clauses (i) and (ii) shall be limited to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment aggregate outstanding principal amount of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceAdditional Loans.
(div) Unless The Company shall give the Required Lenders shall otherwise agree, commencing with the fiscal year at least ten Business Days prior written notice of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of event that would cause the Loans as set forth in to be prepaid under this Section 2.5(f) on the Prepayment Application Date2.07(b).
(ev) Unless the Required Lenders The provisions of this Section 2.07(b) and Section 2.05(b) shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall not be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts deemed to be applied in connection with prepayments made pursuant implied consent to any such sale, transfer or other disposition or such issuance, sale or incurrence otherwise prohibited by the terms and conditions of this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidAgreement.
Appears in 1 contract
Samples: Loan Agreement (Aksys LTD)
Mandatory Prepayments. (ai) Unless At any time the Required Lenders otherwise agreeCompany’s Consolidated Net Leverage Ratio (based on the most recently delivered Officer’s Certificate pursuant to Section 5.01(i)(iv)) is above 3.50 to 1.00, an amount the Company shall make mandatory principal prepayments of the Term Loans in amounts equal to 50% one hundred percent (100%) of the aggregate Net Cash Proceeds from (A) any Asset Disposition or (B) any payment to the Company or any Subsidiary thereof of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of their respective property (an “Insurance and Condemnation Event”) to the extent that the aggregate amount of the Net Cash Proceeds referred to in clauses (A) and (B) exceeds $50,000,000 during any fiscal year of any issuance of Capital Stock by any Loan Party the Company. Such prepayments shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the date of receipt of such Net Cash Proceeds by the Company or any of its Subsidiaries; provided that, so long as no Event of Default has occurred and is continuing, no prepayment shall be required under this Section 2.09(b)(i) to the extent that such Net Cash Proceeds (x) are reinvested in assets used or useful (including by making an Acquisition) in the business of the Company and its Subsidiaries within twelve (12) months after receipt of such Net Cash Proceeds, or if the Company or any of its Subsidiaries has entered into a binding contract to so reinvest such Net Cash Proceeds during such twelve (12) month period, to the extent such Net Cash Proceeds are so reinvested within six (6) months after the expiration of such twelve (12) month period; provided further that any portion of such Net Cash Proceeds not actually reinvested within the applicable period shall be used to prepay the Term Loans in accordance with this Section 2.09(b)(i) on or before the last day of receipt by a Group Member such period; or (y) in the case of the Net Cash Proceeds of an Insurance and Condemnation Event, are used to reimburse the Company or any Asset Sale Subsidiary for any costs or Recovery Event that results from expenses incurred in connection with the sale restoration or other disposition of, or payment with respect to, replacement of any property subject to such Insurance and Condemnation Event. Each prepayment of the CollateralTerm Loans under this Section shall be applied ratably between the Initial Term Loans and any Incremental Term Loans to reduce in direct order of maturity (or as otherwise directed by the Company) the remaining scheduled principal installments of such Term Loans.
(ii) On the date of any termination or reduction of US Revolving Commitments or Canadian Commitments pursuant to this Agreement, the applicable Borrower shall pay or prepay so much of the Advances as shall be necessary in order that the aggregate US Usage will not exceed the aggregate US Revolving Commitments and that the aggregate principal amount of Canadian Advances will not exceed the aggregate Canadian Commitments, in each case after giving effect to such termination or reduction.
(iii) If, on any date, the Administrative Agent notifies the Borrowers that, on any interest payment date, the sum of (1) the aggregate principal amount of all Canadian Advances denominated in US Dollars plus (2) the Equivalent in US Dollars (determined on the third Business Day prior to such interest payment date) of the aggregate principal amount of all Canadian Prime Rate Advances plus the Equivalent in US Dollars (determined on the third Business Day prior to such interest payment date) of the sum of the Face Amount of all Bankers’ Acceptances and BA Equivalent Notes then outstanding exceeds 105% of the aggregate Canadian Commitments of the Canadian Lenders on such date, each Borrower shall, as soon as practicable and in any event within two Business Days after receipt of such notice, (x) prepay the outstanding principal amount of any Advances (other than BA Advances) owing by such Borrower in an aggregate amount sufficient to reduce such sum to an amount equal not to exceed 100% of the aggregate Canadian Commitments of the Canadian Lenders on such Net Cash Proceeds minus date, and (y) to the extent necessary after the Borrowers have made all prepayments required pursuant to clause (x), the Canadian Borrower shall cash collateralize the outstanding Bankers’ Acceptances and BA Equivalent Notes in accordance with Section 2.16(n) in any aggregate amount sufficient to reduce such sum to an amount not to exceed 100% of the aggregate Canadian Commitments of the Canadian Lenders on such date.
(iv) If (A) the aggregate principal amount of all US Revolving Advances shall exceed the aggregate US Revolving Commitments, (B) the total principal amount of US Revolving Advances of any US Revolving Lender shall exceed such US Revolving Lender’s US Revolving Commitment or (C) the total Available Amount of all Letters of Credit issued by any individual Issuing Bank shall exceed such Issuing Bank’s Letter of Credit Commitment, the Company shall prepay such US Revolving Advances or cash collateralize such Letters of Credit in the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceexcess.
(dv) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the Each prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 2.09 shall be applied to the prepayment of the Loans in accordance made together with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by interest accrued interest to the date of such prepayment on the amount principal amounts prepaid. The Administrative Agent shall give prompt notice of any prepayment required under Section 2.09(b)(ii) or (iv) to the Borrowers and the Lenders.
Appears in 1 contract
Samples: Credit Agreement (Olin Corp)
Mandatory Prepayments. (a) Unless Immediately upon receipt by the Required Lenders otherwise agree, an amount equal to 50% Borrower or any of the its Subsidiaries of Net Cash Proceeds from (A) any sale or other disposition by the Borrower or any of its Subsidiaries of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any its assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (ySection 7.6(h) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionq), or (zB) Permitted Open Market Purchases.
(b) Unless any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Required Lenders Borrower shall otherwise agree and except as set forth prepay the Obligations in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of Net Cash Proceeds; provided that the Borrower shall not be required to prepay the Obligations (i) with respect to proceeds from the sales of inventory in the ordinary course of business, (ii) Net Cash Proceeds not exceeding the greater of $10,000,000 in any incurrence Fiscal Year and $25,000,000 in the aggregate after the Closing Date (and if such foregoing amount is exceeded, only such excess amounts shall be subject to this clause (a)) and (iii) Net Cash Proceeds that are reinvested in assets of Indebtedness the general type used or useful in the business of the Borrower and its Subsidiaries within three hundred sixty-five (365) days following receipt thereof; provided that any Loan Party (excluding any Indebtedness permitted funds that are committed to be incurred reinvested during the initial three hundred sixty-five (365) days after the receipt of such proceeds but the reinvestment has not yet occurred by the end of such period, the Borrower and its Subsidiaries shall have an additional one hundred eighty (180) day period to consummate such reinvestment; provided, further, that if any such proceeds have not been reinvested at the end of such additional period, the Borrower shall promptly prepay the Obligations and the Other Applicable Indebtedness (as defined below) as required by this Section 2.12(a); provided, further, that if at the time that any such prepayment would be required under Section 6.2this clause (a), the Borrower is required to repay or repurchase or to offer to repurchase or repay Incremental Equivalent Debt that is pari passu to the Obligations (including Incremental Equivalent Debt consisting of (x) shall term loans secured by a Lien on the Collateral on a pari passu basis with the Lien on the Collateral securing the Obligations and/or (y) senior unsecured notes) pursuant to the terms of the documentation governing such Incremental Equivalent Debt with such Net Cash Proceeds (such Incremental Equivalent Debt required to be applied repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied Obligations and to the repayment or repurchase of Other Applicable Indebtedness, and the amount of prepayment of the Loans as set forth in Section 2.5(fObligations that would have otherwise been required pursuant to this clause (a) shall be reduced accordingly (for purposes of this proviso pro rata basis shall be determined on the 121st day basis of the aggregate outstanding principal amount of the Obligations and Other Applicable Indebtedness at such time, with it being agreed that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net 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 shall be allocated to the Obligations in accordance with the terms hereof); provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (the “Payment Date”and in any event within ten (10) Business Days after the date of such incurrence rejection) be applied to prepay the Obligations in accordance with the terms hereof. Any such prepayment shall be applied in accordance with subsection (as such date may be extended pursuant to the proviso set forth at the end d) of this sentenceSection.
(b) to Immediately upon receipt by the extent such Borrower or any of its Subsidiaries of any Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditurefrom any issuance or incurrence of Indebtedness by the Borrower or any of its Subsidiaries, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus Proceeds; provided that the amount Borrower shall not be required to prepay the Obligations with respect to proceeds of Indebtedness permitted under Section 7.1. Any such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement prepayment shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten accordance with subsection (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (yd) of this sentenceSection.
(c) [Reserved].
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of Any prepayments made by the Borrower ending December 31, 2008, the Applicable Amount pursuant to subsection (a) or (b) of the Adjusted Excess Cash Flow for any fiscal year of the Borrower this Section shall be applied as follows: first, to the prepayment Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loans Loan Documents; second, unless otherwise provided in the applicable Incremental Commitment Joinder, Extended Facility Agreement or Refinancing Amendment, as set forth applicable, to the principal balance of the Term Loans, until the same shall have been paid in Section 2.5(f) full, pro rata to the Term Lenders based on their Pro Rata Shares of the Term Loans, and applied pro rata across all installments of the Term Loans, including, without limitation, the final installment on the Prepayment Application Maturity Date; third, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; fourth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Revolving Lenders based on their respective Revolving Commitments; and fifth, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Revolving Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses second through fifth above.
(e) Unless If at any time the Required aggregate Revolving Credit Exposure of all Revolving Lenders shall otherwise agreeexceeds the Aggregate Revolving Commitment Amount, commencing with the fiscal year of the Borrower ending December 31as reduced pursuant to Section 2.8 or otherwise, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied immediately repay the Swingline Loans and the Revolving Loans in an amount equal to the such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each such prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, as follows: first, to ABR the Swingline Loans and, to the full extent thereof; second, to Eurodollar Loansthe Base Rate Revolving Loans to the full extent thereof; and third, to the SOFR Revolving Loans to the full extent thereof. Each If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Loans under this Section 2.5 aggregate Revolving Credit Exposure of all Revolving Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall be accompanied by Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued interest to the date of such prepayment on the amount prepaidand unpaid fees thereon.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied In addition to the prepayment of the Loans as set forth scheduled repayments provided for in Section 2.5(f) on 2.4 hereof, EnergySolutions shall prepay the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (Term Loans in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds (w) from any sale or disposition by Holdco, Parent or any of their Subsidiaries of any incurrence of Indebtedness of interest in any Loan Party (excluding other than from a sale to another Loan Party), (x) except as set forth below, from any Indebtedness permitted to be incurred under Section 6.2Permitted Asset Sales (other than any Excluded Asset Sales) shall be applied to the prepayment of the Loans and (y) except as set forth in Section 2.5(f5.5(e) on the date hereof, received as a result of such incurrencea casualty or condemnation. An Such amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied on the third Business Day following receipt thereof by EnergySolutions or the affected Subsidiary in accordance with Section 2.6(b). EnergySolutions shall also prepay the Term Loans, with application thereto in accordance with Section 2.6(b), in respective amounts equal to the prepayment after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business. Notwithstanding the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableforegoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of EnergySolutions, and so long as no Default or Event of Default shall have occurred and be continuing, EnergySolutions may reinvest all or any portion of such Net Proceeds in assets acquired by used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided, however, that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any Group Member capital assets purchased with the Net Proceeds thereof pursuant to such Board-Approved Investment this subsection shall be mortgaged or Proceeds Investmentpledged, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableAdministrative Agent, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment for the benefit of the Indebtedness under the Exit Facility Agreement; provided that Secured Parties and (ii) if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior no longer intended to such 181st day to consummate (x) be so reinvested at any time after delivery of a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notice of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateralreinvestment election, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.6(b). The application For the purposes of calculating the mandatory prepayment required by this Section 2.7(a), “Net Proceeds” shall exclude all Net Proceeds received by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(b) In addition to the scheduled repayments provided for in Section 2.4 hereof, EnergySolutions shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Agreement Date from any Indebtedness for Money Borrowed incurred by Holdco, EnergySolutions, Parent or any of their Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted
(c) under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or the Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition. Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b). For the purposes of calculating the mandatory prepayment required by this Section 2.7(b), “Net Proceeds” shall exclude all Net Proceeds received from any Indebtedness for Money Borrowed incurred by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(d) In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof, on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, EnergySolutions shall not be required prepay the Term Loans.
(e) Any prepayment pursuant to this Section 2.5 2.7 shall be mademade in the manner set forth in Section 2.6(b).
(f) Notwithstanding the foregoing provisions of this Section 2.7, first, to ABR Loans and, second, to Eurodollar Loans. Each no mandatory prepayment of the Loans under shall be made pursuant to this Section 2.5 2.7 or be due and payable until such time as no principal, interest, fees and other due and payable amounts are owed under the First Lien Credit Agreements (or any refinancings thereof) or otherwise consented to by the Majority Lenders (as defined in the First Lien Credit Agreements) under the First Lien Credit Agreements or as otherwise permitted thereunder.
(g) Any prepayments made pursuant to this Section 2.7 shall be accompanied by accrued interest subject to the date call protection provisions of such prepayment on the amount prepaidSection 2.6(c).
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Samples: Second Lien Credit Agreement (EnergySolutions, Inc.)
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied In addition to the prepayment of the Loans as set forth scheduled repayments provided for in Section 2.5(f) on 2.4 hereof, EnergySolutions shall prepay the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (Term Loans in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds (w) from any sale or disposition by Holdco, Parent or any of their Subsidiaries of any incurrence of Indebtedness of interest in any Loan Party (excluding other than from a sale to another Loan Party), (x) except as set forth below, from any Indebtedness permitted to be incurred under Section 6.2Permitted Asset Sales (other than any Excluded Asset Sales) shall be applied to the prepayment of the Loans and (y) except as set forth in Section 2.5(f5.5(e) on the date hereof, received as a result of such incurrencea casualty or condemnation. An Such amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied on the third Business Day following receipt thereof by EnergySolutions or the affected Subsidiary in accordance with Section 2.6(b). EnergySolutions shall also prepay the Term Loans, with application thereto in accordance with Section 2.6(b), in respective amounts equal to the prepayment after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business. Notwithstanding the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableforegoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of EnergySolutions, and so long as no Default or Event of Default shall have occurred and be continuing, EnergySolutions may reinvest all or any portion of such Net Proceeds in assets acquired by used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided, however, that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any Group Member capital assets purchased with the Net Proceeds thereof pursuant to such Board-Approved Investment this subsection shall be mortgaged or Proceeds Investmentpledged, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableAdministrative Agent, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment for the benefit of the Indebtedness under the Exit Facility Agreement; provided that Secured Parties and (ii) if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior no longer intended to such 181st day to consummate (x) be so reinvested at any time after delivery of a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notice of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateralreinvestment election, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.6(b). The application For the purposes of calculating the mandatory prepayment required by this Section 2.8(a), “Net Proceeds” shall exclude all Net Proceeds received by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(b) In addition to the scheduled repayments provided for in Section 2.4 hereof, EnergySolutions shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Second Amendment Effective Date from any Indebtedness for Money Borrowed incurred by Holdco, EnergySolutions, Parent or any of their Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or the Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition, other than, in the case of clauses (i) and (ii), any Additional Permitted Debt incurred pursuant to Section 7.1(w) (to the extent required to prepay Term Loans pursuant to such section). Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b). For the purposes of calculating the mandatory prepayment required by this Section 2.8(b), “Net Proceeds” shall exclude all Net Proceeds received from any Indebtedness for Money Borrowed incurred by Duratek and its Subsidiaries other than under Section 7.1(w) of this Agreement or the Duratek Loan Agreement; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(c) In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof (commencing with the fiscal quarter ended September 30, 2006), on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, EnergySolutions shall not be required prepay the Term Loans.
(d) On each date when the aggregate amount of all Synthetic Letter of Credit Outstandings exceeds the Synthetic Facility Available Amount, EnergySolutions shall cash collateralize all Synthetic Letter of Credit Outstandings in an aggregate amount equal to such excess.
(e) Any prepayment pursuant to this Section 2.5 2.8 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of made in the Loans under this manner set forth in Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.6(b).
Appears in 1 contract
Mandatory Prepayments. (a) Unless The Borrower shall (i) within 30 days following the Required Lenders otherwise agreeoccurrence of a Change in Control, make an offer to each Lender to prepay the entire outstanding principal amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth pursuant to a Change in Section 2.5(fControl Offer and (ii) on prepay the 121st day after Loans of all Lenders properly accepting such offer of prepayment in accordance with such Change in Control Offer. On the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditurePrepayment Date, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of prepay the Loans as specified above to of all Lenders who accept the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) Change in Control Offer at a Board-Approved Investment or Proceeds Investment (purchase price in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount cash equal to 100% of the Net Cash Proceeds principal amount thereof, plus accrued and unpaid interest, if any, to the date of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) prepayment. Notwithstanding the foregoing, the Borrower shall be applied deemed to have made a Change in Control Offer upon a Change in Control if a third party makes the Change in Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 2.13(a) applicable to a Change in Control Offer made by the Borrower and prepays all or any portion of the Loans as to which offers for prepayment have been validly accepted and not withdrawn pursuant to the terms of such Change in Control Offer. Notwithstanding anything to the contrary set forth herein, an offer to prepay the Loans may be made in advance of a Change in Control, conditional upon such Change in Control, if a definitive agreement is in place with respect to such Change in Control at the time of making such offer. Prior to complying with the provisions of this Section 2.13(a), but in any event within 30 days following a Change in Control, the Borrower shall either repay all outstanding Indebtedness under the Revolving Credit Agreement or obtain the requisite consents, if any, under the Revolving Credit Agreement necessary to permit the prepayment of the Loans as set forth in required by this Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.13(a), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on the failure to repay such 121st day a Board-Approved Investment Indebtedness or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases obtain such consent shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to affect the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year obligation of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.13(a). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Senior Unsecured Interim Loan Agreement (Avis Budget Group, Inc.)
Mandatory Prepayments. (a) Unless If any Indebtedness shall be incurred by the Required Lenders otherwise agree, an amount equal to 50% of Borrower after the Net Cash Proceeds of Closing Date (other than any issuance of Capital Stock by any Loan Party permitted Indebtedness incurred in accordance with Section 7.2 (except for Credit Agreement Refinancing Indebtedness which shall be applied to the prepayment in accordance with clause (iii) of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bedefinition thereof), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) thereof shall be applied to on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.5(f2.11(d).
(b) If on any date the date Company or any of such incurrence. An amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery Event then, the Applicable Asset Sale Prepayment Percentage of any incurrence of Permitted Subordinated Indebtedness of any Loan Party such Net Cash Proceeds shall be applied to by the Borrower on the fifth Business Day following such receipt thereof toward the prepayment of the Term Loans as set forth in Section 2.5(f) on 2.11(d); provided, that, notwithstanding the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth foregoing, at the end option of this sentencethe Company, the Company may reinvest the Net Cash Proceeds in the business of the Company or any of its Subsidiaries within (x) to 12 months following the extent receipt of such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as 18 months following the Borrower shall have complied with receipt of such Net Cash Proceeds, in the provisions event that the Company or any of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members its Subsidiaries shall have entered into a binding letter commitment within 12 months following the receipt of intent such Net Cash Proceeds to reinvest such Net Cash Proceeds in the business of the Company or definitive purchase documentation with respect thereto any of its Subsidiaries (orit being understood that if any portion of such Net Cash Proceeds are no longer intended to be reinvested or are not reinvested within such 18-month period, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after Applicable Asset Sale Prepayment Percentage of such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to by the prepayment of Borrower on the Loans as specified above to fifth Business Day after the extent Company reasonably determines that such Net Cash Proceeds are no longer intended to be or are not used prior to reinvested within such 181st day to consummate (x) a Board18-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the month period toward prepayment of the Term Loans as set forth in Section 2.5(f) within ten (10) Business Days after 2.11(d)); provided that if at the day of receipt of time that any such prepayment would be required, the Company or any of its Subsidiaries is required to prepay or offer to repurchase with the Net Cash Proceeds of such Asset Sale or Recovery Event any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured by any Group Member; provided a Lien on the Collateral that no prepayment is pari passu (but without regard to the control of remedies) with the Liens securing the Obligations pursuant to the terms of the Loans shall be documentation governing such Indebtedness (such Indebtedness required to be made pursuant offered to this subsection until be so repurchased, “Other Applicable Asset Sale Indebtedness”), then the amount of Company may apply the Net Cash Proceeds to be applied to make on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Asset Sale Indebtedness at such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied time) to the prepayment of such Other Applicable Asset Sale Indebtedness; it being understood that the portion of the Net Cash Proceeds allocated to the Other Applicable Asset Sale Indebtedness shall not exceed the amount of the Net Cash Proceeds required to be allocated to the Other Applicable Asset Sale Indebtedness pursuant to the terms thereof (and the remaining amount, if any, of the Net Cash Proceeds shall be allocated to the Term Loans as set forth in Section 2.5(faccordance with the terms hereof). Notwithstanding , and the delivery amount of a Reinvestment Notice the prepayment of the Term Loans that would have otherwise been required pursuant to this paragraph, Section 2.11(b) shall be reduced accordingly.
(c) No later than the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from fifth Business Day after the requirement to prepay date on which the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) financial statements with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any each fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that Borrower are required to be applied delivered pursuant to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agreeSection 6.1(a), commencing with the fiscal year of the Borrower ending December 31, 20082022, the Borrower shall prepay Term Loans in accordance with Section 2.11(d) in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Applicable Amount ECF Prepayment Percentage of the Adjusted Excess Cash Flow of the Company and its Subsidiaries for the Excess Cash Flow Period then most recently ended (this clause (A), the “Base ECF Prepayment Amount”) minus (B) at the option of the Borrower, to the extent occurring during such Excess Cash Flow Period (or occurring after such Excess Cash Flow Period and prior to the date of the applicable Excess Cash Flow payment), and without duplication (including duplication of any amounts deducted in any prior Excess Cash Flow Period or deducted in the calculation of Excess Cash Flow pursuant to the definition thereof), the following (collectively, the “ECF Deductions”):
(i) the aggregate principal amount of any Term Loans prepaid pursuant to Section 2.10;
(ii) the aggregate principal amount of any Incremental Equivalent Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 7.2 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Facilities (without regard to the control of remedies), voluntarily prepaid, repurchased, redeemed or otherwise retired;
(iii) the amount of any reduction in the outstanding amount of any Term Loans, Incremental Equivalent Debt and/or any other Indebtedness permitted to be incurred pursuant to Section 7.2 to the extent secured by Liens on the Collateral that are pari passu with the Liens on the Collateral securing the Facilities (without regard to the control of remedies), resulting from any purchase or assignment made in accordance with Section 10.6(k) (with respect to Term Loans) and any equivalent provisions with respect to any Incremental Equivalent Debt and/or such other Indebtedness;
(iv) all Cash payments in respect of Capital Expenditures and all Cash payments made to acquire IP Rights;
(v) Cash payments by the Company and its Subsidiaries made in respect of long-term liabilities (including for purposes of clarity, the current portion of such long-term liabilities) of the Company and its Subsidiaries other than Indebtedness, except to the extent such Cash payments were deducted in the calculation of Consolidated Net Income or Consolidated EBITDA for such period;
(vi) Cash payments made from internally generated Cash in respect of any Investment (including acquisitions) permitted by Section 7.7 or otherwise consented to by the Required Lenders (other than Investments (x) in Cash or Cash Equivalents or (y) in the Borrower or any Loan Party) and/or any Restricted Payment permitted by Section 7.7 or otherwise consented to by the Required Lenders;
(vii) the aggregate consideration (A) required to be paid in Cash by the Borrower or its Subsidiaries pursuant to binding contracts entered into prior to or during such period relating to Capital Expenditures, acquisitions or other Investments permitted by Section 7.7 or otherwise consented to by the Required Lenders and/or Restricted Payments described in clause (vi) above and/or (B) otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or other Investments and/or Restricted Payments described in clause (vi) above (clauses (A) and (B) of this clause (vii), the “Scheduled Consideration”) (other than Investments in (x) Cash and Cash Equivalents or (y) the Borrower or any Loan Party) to be consummated or made during the period of four consecutive fiscal year quarters of the Borrower following the end of such Excess Cash Flow Period; provided that to the extent the aggregate amount actually utilized to finance such Capital Expenditures, acquisitions, Investments or Restricted Payments during such subsequent period of four consecutive fiscal quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of the ECF Prepayment Amount at the end of such subsequent period of four consecutive fiscal quarters;
(viii) Cash expenditures in respect of any Hedge Agreement to the extent not otherwise deducted in the calculation of Consolidated Net Income or Consolidated EBITDA; and
(ix) the aggregate amount of expenditures actually made by the Borrower and/or any Subsidiary in Cash (including any expenditure for the payment of fees or other Charges (or any amortization thereof for such period) in connection with any Disposition, incurrence or repayment of Indebtedness, issuance of Capital Stock, refinancing transaction, amendment or modification of any debt instrument, including this Agreement, and including, in each case, any such transaction consummated prior to, on or after the Closing Date, and Charges incurred in connection therewith, whether or not such transaction was successful), in each case to the extent that such expenditures were not expensed; in the case of each of clauses (i)-(ix), (I) excluding any such payments, prepayments and expenditures made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(c) in any prior Fiscal Year, (II) in the case of any prepayment of revolving Indebtedness, to the extent accompanied by a permanent reduction in the relevant commitment, (III) to the extent that such payments, prepayments and expenditures were not financed with the proceeds of other Long-Term Indebtedness of the Borrower or its Subsidiaries and (IV) in each case under clause (3) above, based upon the actual amount of cash paid in connection with any relevant purchase or assignment; provided that no prepayment under this Section 2.11(c) shall be required unless the principal amount of Term Loans required to be prepaid exceeds $10,000,000 (and, in such case, only such amount in excess of such amount shall be required to be prepaid); provided, further, that if at the time that any such prepayment would be required, the Borrower or any of its Subsidiaries is required to prepay or offer to repurchase with any portion of the ECF Prepayment Amount any Incremental Equivalent Debt, Credit Agreement Refinancing Indebtedness, Ratio Debt, Incurred Acquisition Debt or any other Indebtedness outstanding at such time, in each case that is secured on a pari passu basis (without regard to the control of remedies) with the Obligations 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”), 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 Term Loans and the relevant Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time) 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(c) shall be reduced accordingly; it being understood that (1) the portion of such ECF Prepayment Amount allocated to the Other Applicable Indebtedness shall not exceed the portion 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 (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.
(d) The application of any prepayment pursuant to Section 2.11(a), 2.11(b) or 2.11(c) shall be made ratably to the Term Loans based on the outstanding respective principal amounts thereof. Partial prepayments of the Term Loans pursuant to this Section 2.11 shall be applied to the prepayment of the Loans remaining installments thereof, as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of directed by the Borrower ending December 31, 2008, (and absent any direction in the Applicable Amount direct order of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(bmaturity). The application of any prepayment of Term Loans pursuant to this Section 2.5 2.13 shall be made, first, to ABR Loans and, and second, to Eurodollar LIBO Rate Loans. Each prepayment of the Loans under this Section 2.5 2.11 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
(e) 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 to Section 2.11(b) or (c) to decline all (but not a portion) of its prepayment (such declined amounts, the “Declined Proceeds”), which Declined Proceeds may be retained by the Borrower and used for any purpose permitted (or not prohibited) hereunder, including to increase the Available Amount; provided that, for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(a) above to the extent that such prepayment is made with the proceeds of any Credit Agreement Refinancing Indebtedness 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 ratable 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 ratable percentage of the total amount of such mandatory prepayment of the Term Loans.
(f) Notwithstanding any other provisions of Section 2.11, to the extent any or all of the Net Cash Proceeds from any Asset Sale or Recovery Event received by the Company or a Foreign Subsidiary are prohibited or delayed by any applicable local law (including financial assistance, corporate benefit restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of the Company or such Foreign Subsidiary) from being repatriated or passed on to or used for the benefit of the Borrower or any applicable Domestic Subsidiary (the Company hereby agreeing to promptly take, and to cause the applicable Foreign Subsidiary to promptly take, all actions reasonably required by the applicable local law to permit such repatriation as long as such repatriation does not create a material adverse tax consequence) or if the Company has determined in good faith that repatriation of any such amount to the Borrower or any applicable Subsidiary would have material adverse tax consequences with respect to such amount, the portion of such Net Cash Proceeds so affected will not be required to be applied to prepay Term Loans at the times provided in this Section 2.11 but may be retained by the Company or the applicable Subsidiary for so long, but only so long, as the applicable local law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower or the applicable Domestic Subsidiary, or the Company believes in good faith that such material adverse tax consequence would result, and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local law or the Company determines in good faith that such repatriation would no longer would have such material adverse tax consequences, such repatriation will be promptly effected and such repatriated Net Cash Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reasonably estimated to be payable as a result thereof) to the prepayment of the applicable Term Loans as otherwise required pursuant to this Section 2.11; provided that, notwithstanding the foregoing, the Borrower and the applicable Domestic Subsidiary shall have no obligation to repatriate any such Net Cash Proceeds (or take any further action with respect thereto) from and after the date that is twelve months after the receipt of such Net Cash Proceeds.
(g) If at any time the Total Revolving Extensions of Credit exceed the Total Revolving Commitments, the Borrower shall, within one Business Day of notice thereof from the Administrative Agent, prepay the Revolving Loans in an amount equal to the amount of such excess.
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Mandatory Prepayments. (a) Unless an Event of Default shall have occurred and be continuing, Borrower, shall, without notice, immediately prepay the Required Lenders otherwise agreeRevolving Loan and the Term Loan, without premium, together with Interest accrued on the amount to be prepaid to the date of prepayment, on any date on which the aggregate principal balance of the Revolving Loan and Term Loan on such date exceeds the sum of (i) the Borrowing Base on such date, and (ii) if the Harlem Real Estate has not been sold or refinanced, $7,000,000, such prepayment to be in an aggregate principal amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall such excess and to be applied first to the prepayment Revolving Loan and then to the Term Loan. Upon the occurrence and continuance of an Event of Default, Borrower will make payments on the Loans as set forth in Section 2.5(f) accordance with Sections 12 and 14 hereof. If Lender receives a payment on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to Receivable, the proceeds of such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date Receivable shall be extended used to prepay the 181st day after such incurrenceRevolving Loan, and on such day the relevant Net Cash Proceeds any excess funds shall be applied used to prepay the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesTerm Loan.
(b) Unless Subject to Section 10.18(a) and notwithstanding the Required Lenders shall otherwise agree foregoing and except as set forth any other provision hereunder or in any other Facility Document to the contrary, in the immediately succeeding sentence event any of Borrower or any Guarantor shall sell, transfer or mortgage any of the Owned Real Estate in accordance with Section 10.18(a) hereof, (a) 100% of the net proceeds of such sale, transfer or mortgage of such Owned Real Estate (other than the Harlem Real Estate) shall be paid to Lender and applied as a prepayment of the Revolving Loan and Term Loan, and, in connection therewith, (i) Lender shall release the lien of the mortgage on such Owned Real Estate and execute any and all documents, termination agreements and instruments required to release the lien of the Mortgage and any other Collateral associated with such Owned Real Estate, and (ii) all of the terms, conditions and provisions hereunder and under the other Facility Documents with respect to such Owned Real Estate shall automatically terminate and be of no further force and effect, and (b) 100% of the net proceeds of such sale, transfer or mortgage of the Harlem Real Estate shall be paid to Lender and applied as a prepayment of the Term Loan, and, in connection therewith, (i) Lender shall release the lien of the Mortgage on the Harlem Real Estate and execute any and all documents, termination agreements and instruments required to release the lien of the Mortgage and any other Collateral associated with the Harlem Real Estate, and (ii) all of the terms, conditions and provisions hereunder and under the other Facility Documents with respect to the incurrence Harlem Real Estate shall automatically terminate and be of Permitted Subordinated Indebtednessno further force and effect.
(c) On the date on which the Borrower terminates the Revolving Loan Commitment in accordance with Section 2.5(b), an the Borrower shall repay the Obligations in full.
(d) In the event that the Revolving Loan Commitment shall be reduced for any reason below the amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment outstanding principal balance of the Loans as set forth in Section 2.5(f) Revolving Loan, on the date of such incurrence. An amount equal reduction Borrower shall pay to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the Lender, as a prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureRevolving Loan, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied excess.
(e) In the event that any Receivable is refinanced in accordance with the terms of this Agreement, Borrower shall pay to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, Lender an amount equal to the Reinvestment Prepayment Amount net cash proceeds received by Borrower in connection with respect such refinancing, which amount shall be used to prepay the Revolving Loan (and the Revolving Loan Commitment shall then be reduced in accordance with the terms of Section 2.7 hereof); provided, however, in the event that the amount of such net cash proceeds is greater than the then outstanding balance of the Revolving Loan, Borrower shall pay to Lender from such net cash proceeds an amount equal to the relevant Reinvestment Event shall be applied to the prepayment then outstanding balance of the Loans as Revolving Loan (and the Revolving Loan Commitment shall then be reduced in accordance with the terms of Section 2.7 hereof) and if, at the time that such payments are required, the conditions set forth in Section 2.5(f7.1, 7.6 and 7.7 are satisfied, Borrower shall have the right to retain the excess(otherwise such excess shall be paid to Lender as a prepayment of the Term Loan). Notwithstanding the delivery foregoing, to the extent that the permanent reduction of the Revolving Loan Commitment required under Section 2.7 in connection with any such refinancing of a Reinvestment Notice pursuant to this paragraphReceivable would reduce the Revolving Loan Commitment below zero, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause then
(i) of Borrower shall prepay the definition thereof Revolving Loan in full, (ii) Borrower shall be excluded prepay the Term Loan in determining the aggregate Net Cash Proceeds subject an amount equal to the limitations set forth in clause amount by which the Revolving Loan Commitment would be reduced below zero, and (xiii) or (y) of this sentence.
(d) Unless if, at the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008time that such payments are required, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as conditions set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree7.1, commencing with the fiscal year of the Borrower ending December 317.6 and 7.7 are satisfied, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall have the right to retain amounts in excess of what is required to be applied paid under the preceding clauses (i) and (ii) (otherwise such excess shall be paid to the Lender as a prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application DateTerm Loan).
(f) Amounts Following the occurrence of an Event of Default, in the event that ERC distributes, dividends, contributes, or otherwise pays any sum of money to be applied in connection with prepayments made Borrower other than pursuant to this Section 2.5 the Purchase and Contribution Agreement, Borrower shall, within two (2) days of receipt of such amounts, pay to Lender such amounts, which amounts shall be applied used to prepay the prepayment of Revolving Loan and then the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidTerm Loan.
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Mandatory Prepayments. At the following times and upon receipt of the same by any Loan Party, the Borrower shall cause the Administrative Agent to receive for application to the Term Loans:
(ai) Unless the Required Lenders otherwise agree, an amount equal to fifty percent (50% %) of the Net Cash Equity Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after receipt thereof; provided, that the day remaining fifty percent (50%) either shall be utilized for Permitted Acquisitions or applied to prepay the Term Loans, in each case within one hundred eighty (180) days of receipt by a Group Member thereof; and
(ii) an amount equal to one hundred (100%) percent of (x) Net Casualty Proceeds which do not become Reinvested Proceeds within one hundred eighty (180) days of receipt thereof, (y) Net Debt Issuance Proceeds not used for Permitted Acquisitions within one hundred eighty (180) days of receipt thereof, and (z) Net Disposition Proceeds in excess of $10,000,000 in the aggregate which do not become Reinvested Proceeds within one hundred eighty (180) days after receipt thereof; provided that the time period of one hundred eighty (180) days shall be extended to three hundred sixty-five (365) days if Holdings obtains Net Cash Disposition Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, transfer of Equity Interests in any of the CollateralUSP International Holdings, an amount equal to 100% Inc., Global Healthcare Partners, Ltd., United Surgical Partners Europe, S.L. and/or USPE Holdings, Ltd. The portion of such Net Casualty Proceeds, Net Debt Issuance Proceeds, Net Equity Proceeds and Net Disposition Proceeds which are permitted to be reinvested or utilized for Permitted Acquisitions by the Borrower as provided above shall, immediately upon any Loan Party’s receipt thereof so long as no Default shall have occurred and be continuing, (1) be applied by the Borrower to the Term Loans in accordance with clause (d) below, or (2) be deposited by the Borrower in a cash collateral account in the Borrower’s name maintained with the Collateral Agent (the “Cash Proceeds minus Collateral Account”). So long as no Default shall have occurred and be continuing, the Borrower may withdraw the applicable proceeds from the Cash Collateral Account to apply to the Term Loans in accordance with clause (d) below or for reinvestment or utilization for Permitted Acquisitions, as the case may be, as provided herein at any time prior to the expiration of the designated period for any such action as provided above (each, a “Designated Period”). Upon expiration of the applicable Designated Period and so long as no Default shall have occurred and be continuing, any proceeds which have not been so reinvested or utilized for Permitted Acquisitions prior to such time shall be delivered by the Collateral Agent to the Administrative Agent to be applied to the Term Loans in accordance with clause (d) below. If, however, a Default shall have occurred and be continuing (A) upon the applicable Loan Party’s receipt of any such proceeds, then the Borrower shall deliver to the Administrative Agent the Term Loan Pro Rata Share of such proceeds, or (B) at any time during any Designated Period, then the Collateral Agent shall withdraw all such proceeds from the Cash Collateral Account upon the occurrence of such Default and deliver to the Administrative Agent the Term Loan Pro Rata Share of such proceeds; provided, that if at any time during the continuance of such Default, the Obligations under and as defined in the Existing Credit Agreement have been permanently paid in full and there are no outstanding commitments or Letters of Credit (as defined in the Existing Credit Agreement) thereunder, then the percentage of such proceeds paid to the Administrative Agent for application to the Term Loans shall be increased from the Term Loan Pro Rata Share to one hundred percent (100%) of the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceproceeds.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Credit Agreement (United Surgical Partners International Inc)
Mandatory Prepayments. (a) Unless Immediately upon receipt by the Required Lenders otherwise agreeBorrower or any of its Subsidiaries of any proceeds of any sale or disposition by the Borrower or any of its Subsidiaries of any of its assets, or any proceeds from any casualty insurance policies or eminent domain, condemnation or similar proceedings, the Borrower shall prepay the Obligations in an amount equal to 50% all such proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by the Net Cash Proceeds Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations with respect to (i) proceeds from the sales of any issuance inventory in the ordinary course of Capital Stock by any Loan Party shall be applied to business, (ii) proceeds from the prepayment sales of the Loans as set forth in assets securing Indebtedness permitted under Section 2.5(f7.1(c) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds proceeds are not used prior to repay such 121st day to make (v) a Capital ExpenditureIndebtedness, (wiii) a Restricted Payment, proceeds from other asset sales permitted under Section 7.6(f) and (xiv) a Board-Approved Investment proceeds that are reinvested in assets then used or a Proceeds Investment (usable in either case so long as the business of the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to and its Subsidiaries within 180 days following receipt thereof. Any such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment in accordance with subsection (c) of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesthis Section.
(b) Unless In the Required Lenders shall otherwise agree and except as set forth in event that the immediately succeeding sentence with respect to Borrower or any of its Subsidiaries receives proceeds from the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any issuance or incurrence of Indebtedness by the Borrower or any of any Loan Party (excluding any Indebtedness its Subsidiaries that is not permitted to be incurred under Section 6.27.1, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date receipt of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as proceeds by the Borrower shall have complied with the provisions of Section 5.9or its applicable Subsidiary, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, apply an amount equal to 100% of such Net Cash Proceeds minus proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the amount Obligations in accordance with subsection (c) of this Section. In the event that the Borrower or any of its Subsidiaries receives proceeds from the issuance or incurrence of Indebtedness that constitutes (i) Incremental Term Loans or Revolving Loans in respect of Incremental Revolving Commitments, in each case incurred to refinance all or any portion of the Term Loans, (ii) Extended Term Loans or Revolving Loans in respect of Extended Revolving Commitments, in each case incurred to refinance all or any portion of the Term Loans or (iii) Other Refinancing Loans incurred to refinance all or any portion of the Term Loans, the Borrower shall, substantially simultaneously with (and in any event not later than the fifth succeeding Business Day) the receipt of such Net Cash Proceeds applied to proceeds by the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceBorrower or its applicable Subsidiary, on each Reinvestment Prepayment Date, apply an amount equal to 100% of such proceeds, net of all fees, commissions, costs, underwriting discounts and other fees and expenses incurred in connection therewith, to prepay the Reinvestment Prepayment Amount with respect to outstanding principal amount of the relevant Reinvestment Event Term Loans and, thereafter, to prepay the Obligations in accordance with subsection (c) of this Section.
(c) Any prepayments made by the Borrower pursuant to subsection (a) or (b) of this Section shall be applied as follows: first, to the prepayment Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loans as set forth in Section 2.5(f). Notwithstanding Loan Documents; second, to all reimbursable expenses of the delivery Lenders and all fees and reimbursable expenses of a Reinvestment Notice the Issuing Bank then due and payable pursuant to this paragraphany of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, unless otherwise provided in the applicable Incremental Commitment Joinder, Extended Facility Agreement or Refinancing Amendment, as applicable, to the principal balance of any then outstanding Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of such Term Loans, and applied to installments of such Term Loans on a pro rata basis (including, without limitation, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from final payment due on the requirement Maturity Date); fifth, to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year principal balance of the BorrowerSwingline Loans, $200,000,000until the same shall have been paid in full, to the Swingline Lender; provided that Net Cash Proceeds that are sixth, to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) the principal balance of the definition thereof Revolving Loans, until the same shall be excluded have been paid in determining the aggregate Net Cash Proceeds subject full, pro rata to the limitations set forth Lenders based on their respective Revolving Commitments; and seventh, to Cash Collateralize the Letters of Credit in clause (x) or (y) an amount in cash equal to the LC Exposure as of this sentencesuch date plus any accrued and unpaid fees thereon.
(d) Unless If at any time the Required aggregate Revolving Credit Exposure of all Lenders shall exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to Section 2.8 or otherwise agreeincreased pursuant to Section 2.23, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be applied as follows: first, to the Swingline Loans to the full extent thereof; second, to the Revolving Loans that are Base Rate Loans to the full extent thereof; and third, to the Revolving Loans that are Eurodollar Loans to the full extent thereof. If, after giving effect to prepayment of the all Swingline Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008and Revolving Loans, the Applicable Amount aggregate Revolving Credit Exposure of all Lenders exceeds the Adjusted Positive EBITDA Variance for any fiscal year of Aggregate Revolving Commitment Amount, the Borrower shall be applied Cash Collateralize its reimbursement obligations with respect to the prepayment all Letters of the Loans as set forth Credit in Section 2.5(f) on the Prepayment Application Datean amount equal to such excess plus any accrued and unpaid fees thereon.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (a) Unless otherwise provided herein, upon receipt by the Required Lenders otherwise agreeBorrower of any Net Cash Proceeds from the sale, lease or other disposition (including as a result of Condemnation (as defined in the Mortgages)) of any CIBC Collateral (other than the sale, lease or other disposition of assets subject to the Liens granted to Fortress pursuant to the Fortress Loan Documents to the extent that the Net Cash Proceeds thereof are applied solely to repay the Fortress Real Estate Financing), then 100% of such Net Cash Proceeds shall be immediately paid to the Agent for the account of the Lenders, and applied as provided in Section 2.7(d); provided, that in the case of any fiscal year, the provisions of this subsection (a) shall be applicable to the Net Cash Proceeds from the sale(s) of Equipment and Vehicles which constitute CIBC Collateral only if and to the extent that the aggregate amount of the Net Cash Proceeds from such sale(s) received in such fiscal year exceeds $1,000,000.
(b) The Borrower shall, from time to time until payment in full of the Term Loans and the termination of this Agreement, within 10 days following the receipt by the Borrower (or by the Agent as loss payee) of any payment of proceeds of any insurance (other than business interruption insurance) required to be maintained pursuant to this Agreement on account of each separate loss, damage or injury in excess of $1,000,000 to any tangible property of the Borrower or any of its Subsidiaries, to the extent such property constitutes CIBC Collateral (unless no Default or Event of Default shall have occurred and be continuing and such proceeds (or any portion thereof) shall have been expended or irrevocably committed by the Borrower to repair or replace such property within 24 months of such loss, damage or injury and the Borrower shall have furnished to the Agent evidence satisfactory to the Agent of such expenditure or commitment and shall have certified to the Agent that such proceeds (or such proceeds together with other funds available to the Borrower) are sufficient to repair or replace such property, pending which the Agent shall hold such proceeds), apply or, to the extent the Agent is loss payee under any insurance policy, irrevocably direct the Agent to apply, an amount equal to 50100% (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 proceeds as provided in Section 2.7(d); provided, that if an Event of Default shall have occurred and be continuing, all proceeds of insurance required to be maintained pursuant to this Agreement relating to the CIBC Collateral which would otherwise be payable to the Borrower shall be paid to the Agent and held or applied pursuant to Section 7.2; provided, however, that with respect to tangible property subject to any Lien permitted under this Agreement (including, without limitation, any Congress Financial Collateral), no such prepayment or reduction shall be required to the extent that this Section would require an application of insurance proceeds that would violate or breach any of the provisions of the instruments or documents under which such Lien arises or which governs the application of proceeds.
(c) If the Borrower incurs any Permitted Refinancing Debt with respect to the Fortress Real Estate Financing, the Borrower shall, not later than the second Business Day after the incurrence thereof, pay to the Agent an amount equal to the excess, if any, of the Net Cash Proceeds of such Permitted Refinancing Debt over the aggregate amount of the Debt so refinanced, which excess Net Cash Proceeds shall be applied as provided in Section 2.7(d).
(d) If, contemporaneously with the payment of any issuance amounts required under this Section 2.7, no Default or Event of Capital Stock by any Loan Party Default shall have occurred and be continuing, the amounts paid under this Section shall be applied to the prepayment of the principal of the Term Loans as set forth in Section 2.5(f) on the 121st day after the date inverse order of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) maturity. If a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment Default or a Proceeds Investment (in either case so long as the Borrower Event of Default shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)occurred and be continuing, then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds amounts paid under this Section shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied accordance with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date7.2.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the Each prepayment of the Term Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by payment of accrued and unpaid interest on the amount prepaid to the date of such prepayment on the amount prepaidand any amounts payable pursuant to Section 2.8.
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Mandatory Prepayments. (a) Unless If the Required Lenders otherwise agree, an amount equal Borrower or any of its Subsidiaries receives insurance proceeds or condemnation proceeds with respect to 50% 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 repair or replacement of such damaged or condemned Property within 30 days of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to receipt thereof, the prepayment of Borrower shall, on such 30th day prepay the Loans and/or make a Cash Collateral Deposit (as set forth in Section 2.5(f2.5(e)) on in an amount equal to the 121st day after the date amount of such issuance to the extent such Net Cash Proceeds are proceeds not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesapplied.
(b) Unless In the Required Lenders event that the Borrower or any of its Subsidiaries makes an Equity Offering, the Borrower shall otherwise agree and except immediately prepay the Loans and/or make a Cash Collateral Deposit (as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, Section 2.5(e)) in an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) such Equity Offering; provided that, so long as no Default has occurred and is continuing or would result therefrom, no prepayment shall be required with respect to an Equity Offering (i) to the extent that such Net Proceeds are applied to the prepayment purchase price of a Permitted Acquisition within ten Business Days after receipt thereof or (ii) resulting from the exercise of the Alliance Atlantis Warrant. No such prepayment shall limit or restrict the rights and remedies of the Lenders under the Loan Documents upon the occurrence and during the continuance of a Default.
(c) On the day of receipt by the Borrower or any of its Subsidiaries of any Net Proceeds with respect to an Asset Disposition, the Borrower shall prepay the Loans and/or make a Cash Collateral Deposit (as set forth in Section 2.5(f2.5(e)) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds; provided that, so long as no Default has occurred and is continuing or would result therefrom, no prepayment shall be required with respect to an Asset Disposition to the extent that the Net Proceeds minus of such Asset Disposition, together with the Net Proceeds of all other Asset Dispositions consummated during such fiscal year, do not exceed $250,000 in the aggregate. On or prior to the date of any Asset Disposition, the Borrower agrees to provide the Agent with calculations used by the Borrower in determining the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided prepayment (or in determining that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such a prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in not required) under this Section 2.5(f2.5(c). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless If at any time the Required Lenders shall otherwise agreeaggregate principal amount of all Revolving Loans and Letters of Credit outstanding exceeds (i) the Borrowing Base (plus any Overadvance Borrowings permitted at such time pursuant to Section 2.1(a)) or (ii) the Aggregate Revolving Loan Commitment, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied immediately, without notice or request by the Agent, prepay the Revolving Loans (together with accrued interest to the date of prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Dateprincipal amount prepaid and any payments required pursuant to Section 2.15) in an aggregate amount equal to such excess. If at any time prior to the Term Loan Commitment Expiration Date the aggregate principal amount of all Term Loans outstanding exceeds the Aggregate Term Loan Commitment, the Borrower shall immediately, without notice or request by the Agent, prepay the Term Loans (together with accrued interest to the date of prepayment on the principal amount prepaid and any payments required pursuant to Section 2.15) in an aggregate amount equal to such excess.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the Each prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied first, to the outstanding principal balance of the Term Loans, by applying such amount to the Original Term Loan Amortization Schedule and each Subsequent Term Loan Amortization Schedule on a pro rata basis, in each case in inverse order of maturity, second, to the outstanding principal balance of Revolving Loans (with no reduction in the Aggregate Revolving Loan Commitment) and third, to make a Cash Collateral Deposit with respect to outstanding Letters of Credit. Each prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by payment in full of all accrued interest thereon to and including the date of such prepayment on the and any amount prepaidrequired by Section 2.
Appears in 1 contract
Samples: Credit Agreement (Point 360)
Mandatory Prepayments. (aA) Unless Immediately upon the Required Lenders otherwise agreeoccurrence of a Change of Control, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with prepay all of the provisions of Section 5.9outstanding Obligations, to plus the extent applicableapplicable Prepayment Premium, with respect to any assets acquired if any;
(B) Immediately upon the receipt by any Group Member Obligor of any Net Proceeds from the incurrence of any Debt (other than Debt permitted to be incurred or issued pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beSection 6.3), (y) a Permitted Acquisition (so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds from such incurrence of Debt plus the applicable Prepayment Premium, if any;
(C) Immediately upon the occurrence of any incurrence of Indebtedness of any Loan Party Permitted Asset Disposition pursuant to clause (excluding any Indebtedness permitted to be incurred under Section 6.2c) shall be applied to the prepayment of the Loans as set forth definition thereof, the Borrower agrees to prepay the Obligations in Section 2.5(f) on the date of such incurrence. An an amount equal to 100% of the Net Cash Proceeds of any incurrence of from such Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9Asset Disposition plus, to the extent applicable, the exit fee pursuant to Item 5 of the Terms Schedule (provided, for the avoidance of doubt, that no Prepayment Premium shall apply with respect to any assets acquired by any Group Member prepayment of the Obligations pursuant to such Board-Approved Investment or Proceeds Investmentthis clause (C));
(D) Immediately upon any Obligor suffering an Event of Loss of any property, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of the Net Proceeds from such Net Cash Proceeds minus Event of Loss plus the amount applicable Prepayment Premium, if any; provided, that if the Borrower notifies the Agent upon or prior to receipt of such Net Cash Proceeds that the Borrower intends to replace or repair the property in respect of which such Net Proceeds are received, then the Borrower may apply all or any part of such Net Proceeds to such replacement or repair of property, so long as (i) no Event of Default shall have occurred and be continuing, and (ii) such Net Proceeds are actually applied to such replacement or repair within 180 days of receipt (or committed in writing to be so applied within 180 days of receipt and deposited in an escrow account of the Indebtedness under Borrower until so applied), and provided, further, that to the Exit Facility Agreement extent any such Net Proceeds are not actually so applied within the time periods specified in the foregoing clause (ii) or an Event of Default shall have occurred and be continuing before such Net Proceeds have been so applied or committed in writing to be applied, then such Net Proceeds shall be immediately applied to prepay the Obligations;
(E) Each prepayment of the Obligations pursuant to the foregoing provisions of Section 1.2(a)(iv)(A)-(D) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans 1.7; and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Loan Agreement (Heritage Distilling Holding Company, Inc.)
Mandatory Prepayments. (a) Unless the Required Lenders When Borrower or any Restricted Subsidiary sells or otherwise agree, an amount equal to 50% of the Net Cash Proceeds disposes of any issuance Collateral, other than Inventory in the ordinary course of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditurebusiness, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9Casualty Event has occurred, to the extent applicablethen, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth delivered in Section 2.5(f) respect thereof within ten (10) Business Days after the day days of Borrower’s or such Loan Party’s receipt of any proceeds (including insurance proceeds, awards, or compensation) of such sale or other disposition or Casualty Event, Borrower shall repay the Advances made to Borrower in an amount equal to the Net Cash Proceeds, such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such Net Cash Proceeds by any Group MemberProceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided that no prepayment of notwithstanding the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Loans Advances and other amounts as set forth in this Section 2.5(f2.14(a). Notwithstanding the delivery ; and provided further, that so long as no Default or Event of a Reinvestment Notice pursuant to this paragraphDefault shall exist or would result therefrom, the aggregate and such Net Cash Proceeds of Asset Sales and Recovery Events that may such a sale, disposition, or Casualty Event do not exceed $25,000,000 in any single transaction or series of related sales or dispositions, then no such prepayment shall be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice required. The foregoing shall not exceed (x) with respect be deemed to be implied consent to any single Asset Sale or Recovery Event, $30,000,000 such sale otherwise prohibited by the terms and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to conditions hereof. Such repayments shall be applied to make Permitted Net Cash Proceeds Reinvestments described the Advances in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds such order as Agent may determine, subject to Xxxxxxxx’s ability to reborrow Revolving Advances in accordance with the limitations set forth terms hereof.
(b) Subject to the provisions of Section 4.11, Agent shall apply the proceeds of any insurance settlements from casualty losses which are received by Agent to the Advances in clause such order as Agent may determine, subject to Xxxxxxxx’s ability to reborrow Revolving Advances in accordance with the terms hereof.
(xc) or (y) of this sentence[Reserved].
(d) Unless [Reserved]. 55
(e) If any Loan Party receives any proceeds from the Required Lenders issuance or incurrence of any Indebtedness (other than Permitted Indebtedness), Borrower shall repay the Advances made to Borrower in an amount equal to the net proceeds of such issuance or incurrence (i.e., gross proceeds less the reasonable costs of such issuance or incurrence), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or issuance otherwise agree, commencing with prohibited by the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower terms and conditions hereof. Such repayments shall be applied to the prepayment of the Loans other Advances in such order as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agreeAgent may determine, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied subject to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts Xxxxxxxx’s ability to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans reborrow Revolving Advances in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidterms hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments Inc)
Mandatory Prepayments. (ai) Unless [reserved].
(ii) No later than the Required Lenders otherwise agreefifth (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 (x) the Performance Chemicals Sale or (y) ABL Priority Collateral), in each case, in excess of $40,000,000 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 $30,000,000 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 Parent Borrower shall apply an amount equal to 50% 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 Parent 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 Parent Borrower or any of its subsidiaries, then so long as no Event of Default then exists, the Parent 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 Parent 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 Parent 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 Parent Borrower or any of its Restricted Subsidiaries is required to Prepay (or offer to repay or repurchase) 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”), 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 Loan Document, the Net Cash Proceeds of any issuance Disposition of Capital Stock by any Loan Party ABL Collateral shall not be required to be applied to the prepayment of the Initial Term Loans as set forth in hereunder.
(iii) In the event that a Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by such Borrower or any of its Restricted Subsidiaries (other than with respect to Indebtedness permitted under Section 2.5(f) on the 121st day after the date of such issuance 6.01, except to the extent such Net Cash Proceeds are not used prior the relevant Indebtedness constitutes (A) Replacement Term Loans, Replacement Revolving Facility or Replacement Notes incurred to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment refinance all or a Proceeds Investment portion of any Class or Classes of Term Loans (as determined by such Borrower) in either case so long as the Borrower shall have complied accordance with the provisions requirements of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be9.02(c), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (zB) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect Incremental Loans or Incremental Equivalent Debt incurred to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds refinance all or a portion of any incurrence Class or Classes of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Term Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent 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), such Borrower shall, promptly upon (and in any event not later than the next succeeding Business Day) the receipt of such Net Cash Proceeds are not used prior to by such 121st day to make (v) a Capital ExpenditureBorrower or its applicable Restricted Subsidiary, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, apply an amount equal to 100% of such Net Cash Proceeds minus to prepay the outstanding principal amount of such Net Cash Proceeds applied 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 Indebtedness contrary,
(A) the Borrowers shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Section 2.11(b)(ii) above to the extent that the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary, 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 Borrowers 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 (it being agreed that, solely during the period within one (1) year following the date such prepayments are required to be made, the Borrowers 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 affected Subject Proceeds is permitted under the Exit Facility Agreement shall be applied applicable Requirement of Law and, to the prepayment 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 Loans as set forth 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 and the repatriated Subject Proceeds will be promptly (and in Section 2.5(f) within ten any event not later than two (102) Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the day repayment of receipt 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 Parent 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; and
(B) if the Parent Borrower determines in good faith that the repatriation (or other intercompany distribution) to a Borrower of any amounts required to mandatorily prepay the Initial Term Loans and other Term Loans pursuant to Section 2.11(b)(ii) above would result in any Parent Company, Holdings, a Borrower or any Restricted Subsidiary incurring material Tax liabilities (including any material withholding Tax) or material adverse Tax consequences (such Net Cash Proceeds amount, a “Restricted Amount”), as reasonably determined by any Group Member; provided that no prepayment of the Loans Parent Borrower, the amount a Borrower shall be required to be made mandatorily prepay pursuant to this subsection Section 2.11(b)(ii) above, as applicable, shall be reduced by the Restricted Amount until such time as the amount Restricted Amount may be repatriated (or otherwise distributed) to a Borrower without the incurrence of Net Cash such material Tax liability or material adverse Tax consequences (each, as determined in good faith by the Parent Borrower); provided, that to the extent that the repatriation (or other intercompany distribution) of any Subject Proceeds 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 applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Datemade, an amount equal to the Reinvestment Prepayment Amount Subject Proceeds 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 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”); provided that (A) to the extent that any such prepayment is declined, the remaining amount thereof may be retained by the Borrowers and (B) 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 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 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 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), (B) with respect to the relevant Reinvestment Event each Class of Initial Term Loans and Additional Term Loans, all accepted prepayments under Section 2.11(b)(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 Parent Borrower (or, in the absence of direction from the Parent 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 of the applicable Class. The amount of such mandatory prepayments shall be applied on a pro rata basis to the then outstanding Initial Term Loans and other Term Loans being prepaid irrespective of whether such outstanding Loans are ABR Loans or SOFR Loans; provided that the amount thereof shall be applied first to ABR Loans to the full extent thereof before application to the SOFR Loans in a manner that minimizes the amount of any payments required to be made by the Borrowers pursuant to Section 2.16. Any prepayment of Initial Term Loans made on or prior to the Loans date that is six (6) months after the Closing Date pursuant to Section 2.11(b)(iii) as part of a Repricing Transaction shall be accompanied by the fee set forth in Section 2.5(f2.12(c). Notwithstanding .
(vii) [Reserved].
(viii) At the delivery time of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (xeach prepayment required under Section 2.11(b)(ii) or (y) of this sentence.
(d) Unless iii), the Required Lenders Parent Borrower shall otherwise agree, commencing with deliver to the fiscal year Administrative Agent a certificate signed by a Responsible Officer of the Parent Borrower ending December 31, 2008, setting forth in reasonable detail the Applicable Amount calculation of the Adjusted Excess Cash Flow for any fiscal year amount of such prepayment. Each such certificate shall specify the Borrower shall be applied to Borrowings being prepaid and the prepayment principal amount of the Loans as set forth in Section 2.5(feach Borrowing (or portion thereof) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b)prepaid. The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 Prepayments shall be accompanied by accrued interest as required by Section 2.13. All prepayments of Borrowings under Section 2.11(b) shall be subject to Section 2.16 and, in the case of prepayments under clause (iii) above as part of a Repricing Transaction shall be subject to Section 2.12(c), but shall otherwise be without premium or penalty.
(ix) Notwithstanding anything to the date contrary herein, it is intended that the Loans will not be treated as “applicable high yield discount obligations” (“AHYDO”) within the meaning of such prepayment Section 163(i)(1) of the Code and the provisions contained herein shall be construed so that the Loans are not treated as AHYDO. Accordingly, starting on the amount prepaidfifth (5th) anniversary of the Closing Date and prior to the end of each accrual period (as defined in Section 1272(a)(5)) thereafter, the Parent Borrower shall pay such amounts of accrued and unpaid interest or original issue discount (as determined for U.S. federal income tax purposes) on the Loans as necessary to ensure that the Loans are not treated as having “significant original issue discount” within the meaning of Section 163(i)(1) of the Code. The computations and determinations made by the Parent Borrower under this provision shall be binding upon each Lender.
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Mandatory Prepayments. The Borrower shall on or prior to the third (a3rd) Unless Business Day following the Required Lenders otherwise agreeoccurrence of any applicable event under clauses (i) through (iii) below, an prepay the Term Loans in amounts as provided below, plus the Prepayment Premium on the principal amount equal to 50% of the Net Cash Proceeds Term Loans being prepaid (calculated in accordance with Section 3.03(a)(ii), it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), plus any accrued but unpaid interest and fees then due and owing, as follows:
(i) In the event of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated IndebtednessCasualty Event, an amount equal to 100% of the Net Cash Proceeds received by any Obligor with respect thereto; provided, however, so long as no Default has occurred and is continuing within one hundred eighty (180) days after receipt of such Net Cash Proceeds, the Obligors may apply the Net Cash Proceeds of any incurrence casualty policy not exceeding $2,500,000 in the aggregate for all losses under all Casualty Events during the term of Indebtedness this Agreement toward the replacement or repair of destroyed or damaged property; provided, further, that any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) such replaced or repaired property shall be applied to Collateral in which the prepayment Administrative Agent for the benefit of the Loans as set forth in Lenders has been granted a security interest under the Security Documents.
(ii) In the event any Obligor incurs Indebtedness other than Indebtedness that is permitted by Section 2.5(f) on the date of such incurrence. An amount equal to 9.01 hereof, 100% of the Net Cash Proceeds thereof received by such Obligor. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(ii) shall not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any incurrence Event of Permitted Subordinated Indebtedness Default which occurs in connection therewith, it being understood that any such Event of any Loan Party shall Default may only be applied to waived with the prepayment express consent of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesMajority Lenders.
(ciii) Unless In the Required Lenders shall otherwise agree and unless a Reinvestment Notice event any Obligor consummates an Asset Sale other than an Asset Sale that is delivered to the Administrative Agent within three permitted by Section 9.09 hereof (3) Business Days after the day of receipt by a Group Member other than Section 9.09(i)), 100% of the Net Cash Proceeds of any received by such Obligor in connection with such Asset Sale or Recovery Event that results from the sale or other disposition ofSale; provided, or payment with respect tohowever, any of the Collateralso long as no Default has occurred and is continuing, an amount equal to 100% within one hundred eighty (180) days after receipt of such Net Cash Proceeds minus Proceeds, the amount of Obligors may use such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to not exceeding $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) 2,500,000 in the aggregate for all Asset Sales during the term of this Agreement, to purchase, replace, repair or restore properties or assets used in the Obligors’ businesses; ‑40‑ provided, further, that any fiscal year such purchased, replaced, repaired or restored property shall be Collateral in which the Administrative Agent for the benefit of the BorrowerLenders has been granted a security interest under the Security Documents. For the avoidance of doubt, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 3.03(b)(iii) shall not be applied deemed to be a consent to any Asset Sale or a cure or waiver of any Event of Default which occurs in connection therewith, it being understood that any such Event of Default may only be waived with the prepayment express consent of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidMajority Lenders.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50(i) The Borrower shall use 100% of the Net Cash Proceeds of any issuance sale or disposition of Capital Stock any asset by the Borrower or any Loan Party Subsidiary (other than any Permitted Asset Sale) whether effected pursuant to a Division or otherwise or of any Casualty, within five (5) Business Days of receipt thereof to make a prepayment of the Term Loans; provided that, prior to the payoff in full of the Obligations (as defined in the Prepetition Credit Agreement as in effect on the Effective Date) (i) 100% of the Net Proceeds of any sale or disposition of any Junior Priority Collateral shall be applied to prepay the Term Loans (as defined in the Prepetition Credit Agreement as in effect on the Effective Date) and (ii) 100% of the Net Proceeds of any sale or disposition of any assets other than Collateral shall be applied to make a prepayment of the Term Loans and Term Loans (as set forth defined in Section 2.5(fthe Prepetition Credit Agreement as in effect on the Effective Date) on a ratable basis. In the 121st day after event of a Casualty (other than a Casualty described in clause (c) of the date definition thereof) of Collateral or of any Specified Aircraft (other than Junior Priority Collateral until the payoff in full of the Prepetition Secured Debt secured by a first priority lien on such issuance to Junior Priority Collateral), the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, Loan Parties (x) shall cause the Net Proceeds to be delivered to the Administrative Agent as loss payee, and (y) in lieu of making a Boardprepayment under this Section 2.8(a)(i) with respect to such Casualty, may substitute Collateral (of the same or better lien priority and perfection) of equal or greater aggregate value as determined by a methodology mutually agreeable to the Borrower and the Administrative Agent, provided that tangible assets will be replaced with tangible assets and intangible assets will be replaced with intangible assets, within 90 days (or within a period of 90 days thereafter if by the end of such initial 90-Approved Investment or a Proceeds Investment (in either case so long as day period the Borrower shall have complied entered into an agreement with a third party to acquire such tangible or intangible assets) of such Casualty. If at the provisions end of Section 5.9, to any such 90-day period (or within a period of 90 days thereafter if by the extent applicable, with respect to any assets acquired by any Group Member pursuant to end of such Boardinitial 90-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as day period the Borrower shall have complied entered into an agreement with a third party to acquire such tangible or intangible assets), any Net Proceeds from a Casualty of any Collateral or of Specified Aircraft (other than Junior Priority Collateral until the provisions payoff in full of Section 5.9, to the extent applicable, with respect to any assets acquired Prepetition Secured Debt secured by any Group Member a first priority lien on such Junior Priority Collateral) have not been used for prepayment or substitute Collateral provided pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth thereinthis Section 2.8.(a)(i), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the make a partial prepayment of the Loans as specified above to the extent Term Loans. Upon such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions substitution of Section 5.9Collateral and provided no Event of Default has occurred and is continuing, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after shall promptly deliver to the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale Borrower or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus Loan Party the amount of such Net Cash Proceeds applied received by the Administrative Agent with respect to such Collateral or Specified Aircraft (other than Junior Priority Collateral until the Indebtedness payoff in full of the Prepetition Secured Debt secured by a first priority lien on such Junior Priority Collateral) relating to such Casualty. Any such prepayment on account of the Term Loans made under the Exit Facility Agreement this Section 2.8(a)(i) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 paragraph (c) below, and shall be made, first, subject to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.10(c).
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Samples: Superpriority Secured Debtor in Possession Credit Agreement (Bristow Group Inc)
Mandatory Prepayments. (a) Unless Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes of any Collateral (other than (x) Inventory in the Required Lenders otherwise agreeOrdinary Course of Business or (y) pursuant to a Permitted Factoring Agreement, the proceeds of which shall be remitted in accordance with Section 4.8(h)), Borrowers shall repay the Advances in an amount equal to 50% of the Net Cash Proceeds of such sale in excess of $1,000,000, such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any issuance of Capital Stock such sale otherwise prohibited by any Loan Party the terms and conditions hereof. Such repayments shall be applied to the prepayment Advances until the Advances equal $0 (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the provisions of Section 3.2(b)) in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. Notwithstanding the forgoing, Borrowers shall not be required to repay any Advances and shall have the right to reinvest Net Cash Proceeds of such sale within one hundred eighty (180) days of receipt thereof so long as no Event of Default is continuing and upon receipt of such Net Cash Proceeds until such reinvestment, such Net Cash Proceeds are deposited in a Depository Account maintained at Agent over which Agent has control (as defined in the Uniform Commercial Code or the PPSA, as applicable).
(b) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by any Credit Party, Borrowers shall, no later than one (1) Business Day after the receipt by the Credit Parties of the Loans net cash proceeds from any such issuance or incurrence of Indebtedness, repay the Advances in an amount equal to one hundred percent (100%) of such net cash proceeds in the case of such incurrence or issuance of Indebtedness. Such repayments will be applied in the same manner as set forth in Section 2.5(f2.19(a) hereof.
(c) All proceeds received by the Credit Parties or Agent (i) under any insurance policy on account of damage or destruction of any assets or property of any Credit Parties, or (ii) as a result of any taking or condemnation of any assets or property, in each case, shall be applied in accordance with Section 6.6 hereof.
(d) Borrowers shall prepay the 121st day outstanding principal amount of the Term Loan in an amount equal to (i) twenty-five percent (25%) of Excess Cash Flow for each fiscal year upon delivery of the financial statements to Agent referred to in and required by Section 9.7 (commencing with the fiscal year ending December 31, 2024) for such fiscal year but in any event not later than one hundred twenty (120) days after the date end of each such issuance fiscal year; provided, however, the amount of prepayment for each fiscal year pursuant to this Section 2.19(d)) shall not exceed $5,000,000, minus (ii) the amount of any voluntary prepayments made during such fiscal year with respect to the Term Loan without duplication of any amounts already reducing Excess Cash Flow pursuant to the definition thereof and solely to the extent that such Net Cash Proceeds are voluntary prepayments were not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied financed with the provisions proceeds of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Boardlong-Approved Investment or Proceeds Investment, as the case may beterm Indebtedness (other than Revolving Advances), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds which amount shall be applied to the prepayment outstanding principal installments of the Loans as specified above to Term Loan in the extent such Net Cash Proceeds inverse order of the maturities thereof. In the event that the financial statements are not used prior to such 181st day to consummate so delivered within sixty (x60) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% days of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to date required by Section 9.7, then a calculation based upon estimated amounts shall, if the Agent so elects in its sole discretion, be incurred under Section 6.2) made by Agent upon which calculation Borrowers shall be applied to make the prepayment of the Loans as set forth in required by this Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.19(d), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to adjustment when the conditions set forth therein), then the Payment Date financial statements are delivered to Agent as required hereby. The calculation made by Agent shall not be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment deemed a waiver of any rights Agent or Lenders may have as a result of the Loans as specified above failure by Borrowers to the extent deliver such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesfinancial statements.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Drilling Tools International Corp)
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% Within five Business Days after receipt by any of the Credit Parties of Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to recovered from the prepayment Sellers in respect of the Loans as set forth UK Acquisition Documents or Net Proceeds from W&I Insurance aggregating on a consolidated basis in Section 2.5(f) on excess of $1,500,000 (collectively, the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure“Acquisition Events”), (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (prepay Accommodations Outstanding in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an aggregate amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make Proceeds, such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection accordance with prepayments made Section 2.8. Notwithstanding the foregoing, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Proceeds from such Acquisition Events to purchase Assets for the UK Credit Parties within 180 days following receipt thereof provided that no Default or Event of Default has occurred or would occur as a result of such reinvestment and such reinvestment is satisfactory to the Lenders, acting reasonably.
(b) Within five Business Days after receipt by any of the Credit Parties of Net Proceeds from Disposition of Assets aggregating in any Financial Year on a consolidated basis in excess of $1,500,000 other than a Permitted Disposition (except a Disposition pursuant to this Section 2.5 6.2(d)(vi)), the Borrower shall prepay Accommodations Outstanding in an aggregate amount equal to 100% of such Net Proceeds, such prepayment to be applied to the prepayment of the Loans in accordance with Section 2.11(b)2.8. The application Notwithstanding the foregoing, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Proceeds from any Disposition of Assets to either (i) replace such Assets in substantially the same form, or (ii) additional or new assets so long as such reinvestment is satisfactory to the Lenders, acting reasonably, within 180 days following receipt of such Net Proceeds provided that no Default or Event of Default has occurred or would occur as a result of such reinvestment and such reinvestment is satisfactory to the Lenders, acting reasonably.
(c) Within five Business Days after receipt by any of the Credit Parties of Net Proceeds of property insurance aggregating in any Financial Year on a consolidated basis in excess of $1,500,000, prepay, or, to the extent the Administrative Agent is loss payee under any insurance policy, irrevocably direct the Administrative Agent to prepay, Accommodations Outstanding in an aggregate amount equal to 100% of such Net Proceeds, such prepayment pursuant to be applied in accordance with Section 2.8. Notwithstanding the foregoing, the Borrower may reinvest or cause to be reinvested all or any portion of such Net Proceeds from Net Proceeds of property insurance to replace or restore any Assets (in substantially the same form as before) in respect of which such Net Proceeds were paid within 180 days following receipt thereof provided that no Default or Event of Default has occurred or would occur as a result of such reinvestment and such reinvestment is satisfactory to the Lenders, acting reasonably. If Administrative Agent receives any insurance proceeds which are not to be applied towards the mandatory prepayment under the terms of this Section 2.5 2.5(1)(c), the Administrative Agent shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest transfer such proceeds promptly to the date of such prepayment on the amount prepaidBorrower.
Appears in 1 contract
Mandatory Prepayments. (a) Unless Paragraph (d) of Clause 8.3 (Mandatory Prepayments from Receipts) of the Required Lenders otherwise agreeSenior Facilities Agreement shall be amended so that a semicolon is inserted at the end of paragraph (iii) and after paragraph (iii) the following is inserted: “provided that, notwithstanding sub-paragraphs (i), (ii) and (iii) above, in relation to a Listing of the Parent as contemplated in the Consent Letter the only obligation of Bidco is to procure a prepayment of the Facilities within 5 Business Days of the receipt of the proceeds of such Listing of an amount equal equivalent to 50% the lesser of:
(i) EUR 150,000,000; or
(ii) an amount applied in prepayment of the Net Cash Proceeds Facilities so that immediately following such prepayment the Total Leverage Ratio as at the last day of the Quarter Period immediately preceding the date of the Listing (but after giving effect to the application of the proceeds of such Listing) for the 12 month period on such date would be 2.5:1, in each case, with any issuance proceeds in excess thereof being, at Bidco’s option, applied in prepayment of Capital Stock by any Loan Party shall be applied the Facilities or retained on the balance sheet of the Parent up to an amount so that immediately following such prepayment or application the Total Leverage Ratio as at the last day of the Quarter Period immediately preceding the date of the Listing (but after giving effect to the prepayment and any cash or Cash Equivalents that remain on the balance sheet of the Loans as set forth in Section 2.5(f) on Parent from the 121st day after the date proceeds of such issuance to Listing) for the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if 12 month period ending on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (date would be 2.5:1 or, with respect to Permitted Open Market Purchasesat Bidco’s discretion, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesless.”
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with In respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% paragraph (d) of Clause 8.3 (Mandatory Prepayments from Receipts) of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party Senior Facilities Agreement, the paragraph immediately following sub-paragraph (excluding any Indebtedness permitted to be incurred under Section 6.2iii) shall be applied to deleted and replaced with the prepayment following: “Any balance of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are proceeds not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale prepaid or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) retained on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans balance sheet in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 the above shall be made, first, available for use by the Group for purposes not prohibited by this Agreement or to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidprepay any cash pay debt and subordinated debt.”
Appears in 1 contract
Mandatory Prepayments. (a) Unless The Borrower shall prepay the Required Term Loans held by the Lenders otherwise agree, an amount equal electing to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the receive a prepayment of the Term Loans as set forth in Section 2.5(f) on from the 121st day after the date proceeds of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment any sale or a Proceeds Investment (in either case so long as disposition by the Borrower shall have complied with or such Subsidiary of any of the provisions Collateral (excluding (i) sales of Section 5.9inventory in the ordinary course of business and (ii) Designated Asset Sales), to the extent applicablerequired under this Section 2.12(a). In the event that the Borrower or any of its Subsidiaries has not applied the cash proceeds from such asset sale (net of commissions and other reasonable and customary transaction costs, with respect to any assets acquired by any Group Member pursuant fees, reserves and expenses properly attributable to such Board-Approved Investment transaction and payable by such Borrower in connection therewith (in each case, if paid to an Affiliate, subject to Section 7.7) or Proceeds Investmentunder the clauses first and second of Section 2.12(b)) within 300 days of receipt of such net cash proceeds to purchase replacement or other fixed assets for use in the operations of the Borrower or any of its Subsidiaries, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall within 10 days after the end of the applicable 300-day period make an offer to prepay the Term Loans to each Lender in accordance with its Pro Rata Share of the Term Loans in writing specifying the aggregate amount of proceeds that have complied with not been so applied. Each Lender electing to receive such prepayment shall notify the provisions Borrower of Section 5.9, to its election in writing within 5 days after its receipt of Borrower’s prepayment offer. Borrower shall pay each Lender that has accepted such offer of prepayment its Pro Rata Share of such proceeds on the 20th day after the end of the applicable 300-day period. To the extent applicablethat the Borrower or any of its Subsidiaries so applies such net cash proceeds from such asset sale (or a portion thereof) then no prepayment shall be required in respect of the net cash proceeds from such asset sale. In the event that any Lender elects not to receive a prepayment so offered by the Borrower, with respect to any assets acquired by any Group Member pursuant the applicable Borrower or Subsidiary shall retain such net proceeds that was offered to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a non-electing Lender. Any such prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate in accordance with paragraph (xb) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesbelow.
(b) Unless Any prepayments made by the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect Borrower pursuant to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2Sections 2.12(a) above shall be applied as follows: first, to Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all other fees and reimbursable expenses of the Lenders, if any, and the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the prepayment Lenders and the Issuing Bank based on their respective Pro Rata Shares of the Loans as set forth in Section 2.5(f) such fees and expenses; third, to interest then due and payable on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied Term Loans, pro rata to the prepayment of the Loans as set forth in Section 2.5(f) applicable electing Lenders based on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9their respective outstanding Term Loans; and fourth, to the extent applicableprincipal of the Term Loans held by the applicable electing Lenders, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as until the case may be), (y) a Permitted Acquisition (so long as the Borrower same shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (paid in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesfull.
(c) Unless In the Required Lenders event and on each occasion that the sum of the Dollar Equivalent of the aggregate principal amount of outstanding Revolving Loans and LC Exposure exceeds the Aggregate Revolving Commitment Amount then in effect, then, the Borrower shall otherwise agree and unless a Reinvestment Notice is delivered promptly prepay Revolving Loans in an aggregate amount sufficient to eliminate such excess. Immediately upon determining the need to make any such prepayment, the Borrower shall notify the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member such required prepayment and of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any identity of the Collateralparticular Revolving Loans being prepaid. If the Administrative Agent shall notify the Borrower that the Administrative Agent has determined that any prepayment is required under this Section 2.12(c), an amount equal to 100% of the Borrower shall make such Net Cash Proceeds minus prepayment and/or reduce the amount of LC Exposure no later than the second Business Day following such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the notice. Any prepayment of Revolving Loans pursuant hereto shall not be limited by the Loans as notice provision for optional prepayments set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make 2.11. Each such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by a payment of all accrued and unpaid interest on the Loans prepaid and any applicable breakage fees and funding losses pursuant to Section 2.19. Each prepayment shall be applied first to the date Swingline Loans to the full extent thereof, second to the Base Rate Loans to the full extent thereof, and finally to Eurocurrency Rate Loans to the full extent thereof. If after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash equal to such prepayment on excess plus any accrued and unpaid fees thereon to be held as collateral for the amount prepaidLC Exposure. Such account shall be administered in the manner provided in Section 2.22(g) hereof.
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Samples: Revolving Credit and Term Loan Agreement (Bristow Group Inc)
Mandatory Prepayments. (a) Unless If any Borrower or any of their Subsidiaries Disposes of any property or assets (other than inventory in the Required Lenders otherwise agreeordinary course of business), the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 50100% of such Net Cash Proceeds upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (e) and (f) below); provided, however, that so long as no Default or Event of Default exists, (i) the Borrowers and their Subsidiaries may receive up to $10,000,000 in the aggregate of such Net Cash Proceeds in any Fiscal Year without making the prepayment described in this Section 5.3(a), and (ii) any Borrower or Subsidiary may reinvest all or any portion of the Net Cash Proceeds received by such Person from any such Disposition in fixed capital or operating assets, including real property (which reinvested amount shall not count against the $10,000,000 threshold set forth in clause (i) above), so long as (A) if any of the property or assets Disposed of constitute Collateral, the reinvestment must be in fixed capital or operating investments that also constitute Collateral and the Administrative Agent must have a perfected Lien in such assets, (B) within 180 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (C) if a definitive agreement to so reinvest has been executed within such 180-day period, then such reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any issuance Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be, upon the conclusion of Capital Stock by any Loan Party shall be the applicable 180-day period, immediately applied to the prepayment of the Loans as set forth in this Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be5.3(a), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to Upon the incurrence or issuance by any Loan Party or any of Permitted Subordinated Indebtednessits Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 9.2 (including, without limitation, Section 9.2(h))), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the receipt thereof by any Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (e) and (f) below).
(c) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, or receipt by any Loan Party or Loan Parties of any other Extraordinary Receipt, which in each case results in the realization by such Person or Persons of Net Cash Proceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is three (3) Business Days after the date of receipt thereof by such Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (e) and (f) below); provided that with respect to any Net Cash Proceeds of an Extraordinary Receipt, at the election of the Borrowers, and so long as no Event of Default shall have occurred and be continuing, such Borrower or such Subsidiary may (A) utilize any incurrence Net Cash Proceeds constituting proceeds of Indebtedness casualty insurance to promptly repair or rebuild, as applicable, any property damaged to the comparable state of such property prior to the casualty event, or (B) reinvest all or any Loan Party portion of such Net Cash Proceeds in fixed capital or operating assets, in each case of clause (excluding A) or (B) so long as (x) within 180 days after receipt of such Net Cash Proceeds, such repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a definitive agreement to so repair, rebuild or reinvest has been executed within such 180-day period, then such repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such definitive agreement; and provided further that any Indebtedness permitted Net Cash Proceeds not subject to be incurred under Section 6.2) such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.5(f5.3(c).
(d) on If for any reason the date Revolving Facility Usage at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans and Letter of such incurrence. An Credit Borrowings and/or Cash Collateralize the Letter of Credit Obligations (other than the Letter of Credit Borrowings) in an aggregate amount equal to 100% such excess (such prepayments and/or Cash Collateralization to be applied as set forth in subsection (f) below). If for any reason, the Delayed Draw Term Loan Outstandings at any time exceed the Delayed Draw Term Facility, the Borrowers shall immediately prepay Delayed Draw Term Loans in an aggregate amount equal to such excess (such prepayments to be applied to the remaining principal repayment installments thereof in inverse order of their maturities).
(e) Each prepayment of Loans pursuant to the foregoing provisions of this Section 5.3 (other than subsection (d)) or subsection (g) below shall be applied, first, to the Term Loans (and, if applicable, any Delayed Draw Term Loans and, any Incremental Term Loans, the Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), any Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and any other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis, on a ratable basis (or, to the extent agreed by the lenders providing any such other Indebtedness, on a less than ratable basis), in each case subject to any Applicable Intercreditor Agreement), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) (it being understood that the portion of the Net Cash Proceeds of allocated to any incurrence of Permitted Subordinated Closing Date Term Loans, Delayed Draw Term Loans, any Incremental Term Loans, the Specified LSP Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make secured by the Collateral on a pari passu basis), any Specified LSP Refinancing Indebtedness (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect secured by the Collateral on a pari passu basis) and any other Indebtedness permitted to any assets acquired be incurred hereunder that is secured by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) Collateral on a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases pari passu basis shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to exceed the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member amount of the Net Cash Proceeds required to be allocated to such Closing Date Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis pursuant to the terms thereof, in each case, determined by the product of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus (x) the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in a fraction, (A) the aggregate during any fiscal year numerator of which is the outstanding principal amount of such Closing Date Term Loans, Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis and (B) the denominator of which is the sum of the Borroweroutstanding principal amount of such Closing Date Term Loans, $200,000,000; provided Delayed Draw Term Loans, Incremental Term Loans, Specified LSP Indebtedness (to the extent secured by the Collateral on a pari passu basis), Specified LSP Refinancing Indebtedness (to the extent secured by the Collateral on a pari passu basis) and such other Indebtedness permitted to be incurred hereunder that is secured by the Collateral on a pari passu basis (and the remaining amount, if any, of the Net Cash Proceeds that are shall be allocated to be applied the Loans in accordance with the terms hereof)) and second, to make Permitted Net Cash Proceeds Reinvestments described in clause the Revolving Credit Facility (i) without permanent reduction of the definition thereof shall be excluded Revolving Credit Commitments) in determining the aggregate Net Cash Proceeds subject to the limitations manner set forth in clause subsection (x) or (yf) of this sentence.
(d) Unless Section 5.3. Subject to Section 2.9, such prepayments shall be paid to the Required Lenders shall otherwise agree, commencing pro rata in accordance with Section 5.4. For the fiscal year avoidance of the Borrower ending December 31, 2008doubt, the Applicable Amount proceeds of any Indebtedness that is not prohibited to be incurred hereunder and is incurred for the Adjusted Excess Cash Flow for any fiscal year purpose of the Borrower refinancing other Indebtedness in a manner not prohibited hereunder shall be applied allocated solely to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Daterefinance such then-existing Indebtedness being refinanced.
(f) Amounts to be applied in connection with prepayments Prepayments of the Revolving Credit Facility made pursuant to this Section 2.5 5.3 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be madeapplied, first, ratably to ABR the Letter of Credit Borrowings, second, ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case) and, third, shall be used to Cash Collateralize the remaining Letter of Credit Obligations; and the amount remaining, if any, after the prepayment in full of all Letter of Credit Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining Letter of Credit Obligations in full may be retained by the Borrowers for use in the ordinary course of business; provided, however, that, in the case of assets that are acquired as part of a Permitted Acquisition and subsequently sold by a Borrower or a Subsidiary within thirty (30) days after such Permitted Acquisition, if such Permitted Acquisition was financed by Revolving Credit Loans, then the mandatory prepayments with respect to such sold assets will be applied first ratably to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full (without any reductions of the Revolving Credit Commitments, in each case), second, to Eurodollar Loansthe Term Loans (and, if applicable, any Delayed Draw Term Loans and Incremental Term Loans on a ratable basis), and to the remaining principal repayment installments thereof in inverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender or Delayed Draw Term Lender agrees to receive less than its pro rata share of such prepayment) and third, to Cash Collateralize the remaining Letter of Credit Obligations. Each prepayment Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from any Borrower or any other Loan Party) to reimburse the Issuing Lender or the Revolving Credit Lenders, as applicable.
(g) Upon the receipt of any Cure Amount, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of the Loans under this Section 2.5 shall be accompanied by accrued interest Cure Amount on or prior to the date of Cure Expiration Date (such prepayment on the amount prepaidprepayments to be applied as set forth in clauses (e) and (f) above).
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) On each date on the 121st day or after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as Effective Date upon which the Borrower shall have complied with or any of its Domestic Subsidiaries receives any cash proceeds from any issuance, incurrence or sale by the provisions Borrower or any of Section 5.9, its Subsidiaries of Indebtedness (other than Indebtedness for borrowed money permitted to the extent applicable, with respect to any assets acquired by any Group Member be incurred pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beSection 10.04), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any the respective issuance, incurrence or sale of such Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to on such date as a mandatory prepayment in accordance with the prepayment requirements of Section 5.02(e);
(b) On each date on or after the Loans as set forth in Section 2.5(f) on Effective Date upon which the date Borrower or any of such incurrence. An its Subsidiaries receives any cash proceeds from a capital contribution to, or the issuance of any Equity Interests of, the Borrower or any of its Subsidiaries, an amount equal to 100% of the Net Cash Proceeds of any incurrence the respective capital contribution or issuance of Permitted Subordinated Indebtedness of any Loan Party Equity Interests shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) as a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (mandatory prepayment in either case so long as the Borrower shall have complied accordance with the provisions requirements of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be5.02(e), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered Subject to the Administrative Agent within three (3) Business Days Final DIP Order, on each date on or after the day Effective Date upon which the Borrower or any of receipt by a Group Member of the Net Cash Proceeds of its Domestic Subsidiaries receives any cash proceeds from any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the CollateralSale, an amount equal to 100% of the Net Sale Proceeds such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement Asset Sale shall be applied to on such date as a mandatory prepayment in accordance with the prepayment requirements of the Loans as set forth in Section 2.5(f5.02(e).
(d) within ten Within one (101) Business Days Day of each date on or after the day Effective Date upon which the Borrower or any of receipt of its Domestic Subsidiaries receives any such Net Cash Proceeds by cash proceeds from any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment DateExtraordinary Receipt, an amount equal to 100% of the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Net Cash Proceeds from such Extraordinary Receipts shall be applied to on such date as a mandatory repayment in accordance with the prepayment requirements of Section 5.02(e), provided that any portion of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) casualty insurance proceeds received with respect to any single Asset Sale or Recovery Event, $30,000,000 and Acquired Assets (y) as defined in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are Asset Purchase Agreement) and intended to be applied (or are applied) to make Permitted Net Cash Proceeds Reinvestments described the repairs or restoration of such Acquired Assets (or any other insurance proceeds to the extent the Required Lenders, in clause (itheir sole discretion, have consented to such use) of the definition thereof shall not be excluded in determining the aggregate deemed Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) mandatory prepayment requirements of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date5.02(d).
(e) Unless Each amount required to be applied pursuant to Sections 5.01 and Sections 5.02(a), (b), (c) and (d) shall first be applied to reduce any interest then accrued and unpaid on the Required Lenders shall otherwise agreeprincipal so prepaid. To the extent that the Net Cash Proceeds or the Net Sale Proceeds required to prepay the Loans pursuant to clauses (a) through (d) above exceed the amount of Loans outstanding, commencing with the fiscal year unused Commitments will be reduced by an amount equal to such excess. Each prepayment or repayment of the Borrower ending December 31, 2008, the Applicable Amount principal of the Adjusted Positive EBITDA Variance for any fiscal year Loans and reduction of the Borrower Commitments shall be applied on a pro rata basis to the prepayment outstanding Loans or Commitments, as applicable. For the avoidance of the doubt, Loans as set forth in Section 2.5(f) on the Prepayment Application Datethat are optionally or mandatorily prepaid or repaid may not be re-borrowed.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Walter Energy, Inc.)
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied In addition to the prepayment of scheduled repayments provided for in Section 2.4 hereof, Duratek shall prepay the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds (w) from any sale or disposition by Duratek or any of its Subsidiaries of any incurrence of Indebtedness of interest in any Loan Party (excluding other than from a sale to another Loan Party), (x) except as set forth below, from any Indebtedness permitted to be incurred under Section 6.2Permitted Asset Sales by Duratek or any of its Subsidiaries (other than any Excluded Asset Sales) shall be applied to the prepayment of the Loans and (y) except as set forth in Section 2.5(f5.5(e) on the date hereof, received by Duratek or any of such incurrenceits Subsidiaries as a result of a casualty or condemnation; provided that if EnergySolutions is a Subsidiary of Duratek, each reference to Duratek and/or its Subsidiaries shall include Parent and/or its Subsidiaries. An Such amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied on the third Business Day following receipt thereof by Duratek or the affected Subsidiary in accordance with Section 2.6(b). Duratek shall also prepay the Loans, with application thereto in accordance with Section 2.6(b), in respective amounts equal to the prepayment after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business. Notwithstanding the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableforegoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of Duratek, and so long as no Default or Event of Default shall have occurred and be continuing, Duratek may reinvest all or any portion of such Net Proceeds in assets acquired by used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided, however, that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any Group Member capital assets purchased with the Net Proceeds thereof pursuant to such Board-Approved Investment this subsection shall be mortgaged or Proceeds Investmentpledged, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableAdministrative Agent, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment for the benefit of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrenceSecured Parties, and on such day the relevant (ii) if any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior no longer intended to such 181st day to consummate (x) be so reinvested at any time after delivery of a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notice of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateralreinvestment election, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.6(b). The application For the purposes of this Section 2.8(a), if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.
(b) In addition to the scheduled repayments provided for in Section 2.4 hereof, Duratek shall prepay the Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Original Agreement Date from any Indebtedness for Money Borrowed incurred by Duratek or any of its Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or its respective Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition, other than, in the case of clauses (i) and (ii), any Additional Permitted Debt incurred pursuant to Section 7.1(w)(A) (to the extent required to be used to prepay Loans pursuant to such section). Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b). For the purposes of this Section 2.8(b), if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.
(c) In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof (commencing with the fiscal quarter ended September 30, 2006), on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, Duratek shall prepay the Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, Duratek shall prepay the Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, Duratek shall not be required prepay the Loans. For the purposes of this Section 2.8(c), if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.
(d) Any prepayment pursuant to this Section 2.5 2.8 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of made in the Loans under this manner set forth in Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.6(b).
Appears in 1 contract
Mandatory Prepayments. To the extent permitted under the Senior --------------------- Facilities, the Company shall, within five (a5) Unless the Required Lenders otherwise agree, an amount equal to 50% days of receipt by any Credit Party of the Net Cash Proceeds that is in excess of the amount thereof required to be paid to the banks under the Senior Facilities of any issuance of Capital Stock by any Loan Party shall be applied Asset Sale (prior to the prepayment of Covenant Conversion Date), Debt Incurrence or Equity Issuance, prepay (to the Loans as extent such Net Cash Proceeds equal or exceed the minimums set forth in Section 2.5(f2.7(e)) on a principal amount of the 121st day after Obligations equal to the amount of such Net Cash Proceeds (less any amounts not required to be paid as a result of the requirement in subsection (e) of this Section 2.7 that all such prepayments be made in multiples of $1,000), at a redemption or prepayment price equal to one hundred percent (100%) of the principal amount of the Obligations so prepaid together with accrued interest to the date of such issuance prepayment (it being understood that, to the extent such Net Cash Proceeds are not permitted to be used prior to such 121st day to make (v) a Capital Expenditureredeem or prepay Obligations, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds may be used in any manner that is permitted under the Senior Facilities); provided, that the redemption or -------- prepayment price shall be one hundred three percent (103.00%) of par plus accrued interest if the Obligations are not used redeemed or prepaid with or in anticipation of funds raised by any means other than an Eligible Financing; provided further, that the Obligations shall be redeemed or prepaid at one -------- ------- hundred percent (100%) of principal plus accrued interest (i) at any time with the proceeds from any Eligible Financing or (ii) at any time after the First Anniversary, unless (x)(i) prior to such 181st day to consummate (x) First Anniversary the Underwriters have delivered a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect Bona Fide Proposal to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Credit Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (yii) in such Credit Party did not authorize the aggregate during any fiscal year of the BorrowerUnderwriters to execute such Bona Fide Proposal, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with Company and the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth Underwriters have agreed in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall their reasonable judgment that no such Bona Fide Proposal could be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (ai) Unless If at any time the Required Lenders otherwise agreeoutstanding balance of the Loan exceeds the Total Borrowing Availability, including, as a result of any reduction in the Commitment amounts as set forth on Schedule I hereto, the Borrowers shall promptly (but in no event later than the second Business Day thereafter) repay the aggregate outstanding Advances to the extent required to eliminate such excess. Such prepayment will not, in and of itself, reduce any Commitment.
(ii) Upon receipt by any Borrower of any cash proceeds of any asset disposition (other than Inventory disposed of in the ordinary course of business), such Borrower shall promptly (but in no event later than the second Business Day thereafter) prepay the Loans in an amount equal to 50% 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 such Borrower in connection therewith to an unrelated third party, (B) sales, use and transfer taxes, (C) amounts payable to holders of senior Liens on such asset (to the Net Cash Proceeds extent such Liens constitute Permitted Encumbrances hereunder), if any, and, so long as no Event of Default has occurred and is continuing, and (D) an appropriate reserve for income taxes in accordance with GAAP in connection therewith. In the event of any issuance escrow or holdback arrangement with respect to any such disposition, the receipt of Capital Stock any deferred proceeds as a result thereof shall be deemed to occur when and as such proceeds are actually received by any Loan Party Borrower. Notwithstanding the foregoing, the following shall not be applied subject to mandatory prepayment under this clause (ii): asset disposition proceeds that are reinvested in similar assets within one hundred eighty (180) days following receipt thereof; provided that (x) if such proceeds exceed $500,000 for any one disposition, such Borrower notifies Agent of its intent to reinvest at the prepayment time such proceeds are received and when such reinvestment occurs, (y) no Event of the Loans as set forth in Section 2.5(f) on the 121st day after Default exists from and including the date of such issuance disposition through and including the date of such reinvestment (and upon the occurrence of such Event of Default, Agent may automatically, or Borrowers shall at the instruction of the Agent, apply any such proceeds to prepayment of the Loans) and (z) at all times prior to such reinvestment such proceeds shall be deposited in a Bank Account (except to the extent the Agent, in its discretion, requires such Net Cash Proceeds Borrower to deposit such amounts in a blocked account). To the extent such funds are placed in a blocked account, they shall be made available to such Borrower to reinvest in similar assets upon any written request by such Borrower for the release of funds necessary for such reinvestment, so long as no Event of Default has occurred and is continuing at the time of such request. To the extent (x) not used prior to reinvest in similar assets, or (y) if any Event of Default has occurred or is continuing, such 121st day asset disposition proceeds shall be applied in accordance with Section 2.2(c).
(iii) If any Borrower issues Stock after the Closing Date or Indebtedness for borrowed money (whether or not permitted pursuant to make this Agreement), such Borrower shall promptly (vbut in no event later than the second Business Day following the date of receipt of the proceeds thereof) a Capital Expenditureprepay the Loans in an amount equal to all such proceeds, net of underwriting discounts and commissions and other reasonable costs, fees and expenses paid in connection therewith. Any such prepayment shall be applied in accordance with Section 2.2(c). Notwithstanding the foregoing, the following shall not be subject to prepayment under this clause (wiii): (1) a Restricted Paymentproceeds of Stock used to fund Permitted Acquisitions in an aggregate amount not to exceed $40,000,000; (2) proceeds of the issuance of additional Indebtedness under this Agreement; and (3) proceeds of any Indebtedness permitted pursuant to Section 7.3(a), provided that, as to any of the above, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notifies Agent of Section 5.9its intent to issue any such Stock, to the extent if applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in no Event of Default exists at the aggregate during time of receipt of such proceeds (and at all times prior to such permitted use, such proceeds shall be deposited into a Bank Account) and, upon the occurrence of any fiscal year Event of Default, Agent may automatically, or Borrowers shall at the instruction of the BorrowerAgent, $200,000,000; provided that Net Cash Proceeds that are apply any such proceeds to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application DateLoans).
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (a) Unless Not later than thirty (30) Business Days following receipt by the Required Lenders otherwise agreeBorrower or any of its Restricted Subsidiaries of Net Cash Proceeds of any Disposition (other than Dispositions permitted under Section 7.6(c), (d), (e), and (f)) or Recovery Event and subject to the Discharge of the Senior Obligations, the Borrower shall prepay the Term Loans, subject to the terms in Section 2.12(i), in accordance with Section 2.12(f) in an amount equal to 50% such Net Cash Proceeds; provided that such prepayment shall not be required (i) if the Borrower has notified the Administrative Agent prior to the expiration of such 30-Business Day period that such Net Cash Proceeds are to be used to repair or replace the property subject to such Disposition or Recovery Event or to acquire other property useful in the business of the Borrower or its Subsidiaries, and either such use or acquisition shall occur, or a binding commitment for such use or acquisition shall have been entered into, within one year of the date of such Disposition or Recovery Event, and (ii) if the aggregate amount of such Net Cash Proceeds that are not reinvested or committed for such reinvestment in accordance with the foregoing clause (i) hereof is less than or equal to (x) with respect to the Net Cash Proceeds of Dispositions, $10,000,000 in any issuance of Capital Stock by any Loan Party shall be applied Fiscal Year and (y) with respect to the prepayment Net Cash Proceeds of Recovery Events, $5,000,000 in any Fiscal Year; provided further that if the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance Borrower shall fail to the extent reinvest such Net Cash Proceeds are not used within such one-year period but shall have notified the Administrative Agent prior to the expiration of such 121st day one-year period in writing of an Investment that the Borrower has committed to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)Net Cash Proceeds, then the Payment Date such one-year reinvestment period shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesfor an additional 180 days.
(b) Unless If the Required Lenders shall otherwise agree and except as set forth Borrower or any Subsidiary incurs or issues any Indebtedness (1) not expressly permitted to be incurred or issued pursuant to Section 7.1 or (2) that is intended to constitute Replacement Term Loans or Credit Agreement Refinancing Indebtedness in respect of any Class of Terms Loans, subject to, in the immediately succeeding sentence with respect case of clause (1), the Discharge of the Senior Obligations, 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 incurrence date which is five (5) Business Days after the receipt of Permitted Subordinated Indebtednesssuch Net Cash Proceeds. Any such prepayment shall be applied in accordance with Section 2.12(f).
(c) [Reserved].
(d) On or prior to the date which is five (5) Business Days after the receipt of a Rejection Notice (as defined in the First Lien Credit Agreement), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans equal to 100% of the Declined Proceeds (as defined in the First Lien Credit Agreement).
(e) Upon the occurrence of a Change in Control, the Borrower shall offer to prepay 100% the Loans at par by making such offer in a notice of Change in Control to the Administrative Agent and the Lenders may decline such offer of prepayment pursuant to Section 2.12(g).
(f) Notwithstanding anything to the contrary in the Loan Documents, if at the time that a prepayment pursuant to Sections 2.12(a), (b)(1), (c) or (d) above would be required, the Borrower is required to offer to repurchase Permitted Second Priority Refinancing Debt or Other Term Loans, other permitted Indebtedness (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations) and the Permitted Refinancing of any such Indebtedness, (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations), in each case pursuant to the terms of the documentation governing such Indebtedness with the Net Cash Proceeds of any incurrence of such Disposition or Casualty Event or excess cash flow (such Permitted Second Priority Refinancing Debt or Other Term Loans or other permitted Indebtedness (or the Permitted Refinancing of any Loan Party (excluding any Indebtedness permitted such Indebtedness) required to be incurred under Section 6.2) offered to be so repurchased, “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; provided, that 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 applied allocated to the Term Loans in accordance with the terms hereof) 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 2.12, as set forth applicable, shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in Section 2.5(f) on any event within 10 Business Days after the date of such incurrencerejection) be applied to prepay the Term Loans in accordance with the terms hereof. An amount equal Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to 100% this Section 2.12 shall be applied ratably to each Class of Term Loans then outstanding; provided that any prepayment of Term Loans with the Net Cash Proceeds of any incurrence of Permitted Subordinated Credit Agreement Refinancing Indebtedness of any Loan Party shall be applied solely to each applicable Class of Refinanced Debt and (B) each such prepayment shall be paid to the Lenders of each Class in accordance with their respective pro rata share of such prepayment.
(g) In connection with any mandatory prepayment to be made by the Borrower pursuant to Sections 2.12(a), (b), (c), (d) or any offer to prepay pursuant to Section 2.12(e), the Administrative Agent will promptly notify each Lender, as applicable, of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as prepayment or offer and provide a reasonably detailed calculation of the amount of such date prepayment or offer and of such Lender’s Pro Rata Share of the prepayment or offer. Each applicable Lender may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment reject all or a Proceeds Investment portion of its Pro Rata Share of any such mandatory prepayment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, other than with respect to any assets acquired by any Group Member prepayments with proceeds of Credit Agreement Refinancing Indebtedness pursuant to Section 2.12(b) or of Replacement Term Loans) or offer (such Board-Approved Investment or Proceeds Investmentdeclined amounts, as the case may be), “Declined Proceeds”) by providing written notice (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investmenteach, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x“Rejection Notice”) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within and the Borrower no later than 5:00 p.m. three (3) Business Days after the day date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment; provided, however, in no event may the proceeds of any Credit Agreement Refinancing Indebtedness or any Replacement Term Loans be rejected. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory prepayment or offer to be rejected by such Lender. If a Group Member 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 or offer of prepayment thereof, as applicable. Any Declined Proceeds may be retained by the Borrower.
(h) [Reserved].
(i) Notwithstanding any other provisions of this Section 2.12, (i) to the extent that the repatriation to the United States of any or all of the Net Cash Proceeds of any Asset Sale Disposition by a Foreign Subsidiary (“Foreign Disposition”) or Recovery the Net Cash Proceeds of any Casualty Event that results from the sale incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents or other disposition of, or payment with respect to, any material agreement (not entered into for the purpose of evading the Collateralrequirements herein), an amount equal to 100% of such the Net Cash Proceeds minus that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.12 if the applicable local law or applicable material documents or agreements would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts (as determined in the Borrower’s reasonable business judgment) to overcome or eliminate any such restrictions on repatriation, so that an amount equal to the full amount of such Net Cash Proceeds applied will otherwise be subject to repayment under this Section 2.12), and if within one year following the Indebtedness under date on which the Exit Facility Agreement shall be applied to the respective prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt would otherwise have been required such repatriation of any of such affected Net Cash Proceeds by any Group Member; provided that no prepayment of is permissible under the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make applicable local law or applicable material documents or agreements, even if such prepayment cash is not actually repatriated at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Datesuch time, an amount equal to the Reinvestment Prepayment Amount with respect amount of the Net Cash Proceeds will be promptly (and in any event not later than five Business Days) applied (net of an amount equal to the relevant Reinvestment Event shall additional taxes of the Borrower, its Subsidiaries, and the direct and indirect holders of Capital Stock in the Borrower that would be applied payable or reserved against and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the prepayment repayment of the Term Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, Section 2.12 and (ii) to the aggregate extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of Asset Sales and Recovery Events that may any Foreign Disposition or Foreign Casualty Event could reasonably be excluded from the requirement expected to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) have adverse tax cost consequences for Borrower or any Restricted Subsidiary with respect to any single Asset Sale or Recovery Eventsuch Net Cash Proceeds, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that an amount equal to such Net Cash Proceeds that are would be so affected will not be subject to repayment under this Section 2.12. For the avoidance of doubt, nothing in this Section 2.12 shall require the Borrower to cause any amounts to be applied repatriated to make Permitted Net Cash Proceeds Reinvestments described the United States (whether or not such amounts are used in clause (i) or excluded from the determination of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) amount of this sentenceany mandatory prepayments hereunder).
(dj) Unless If the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December Sterling Acquisition is not consummated by 11:59p.m. on January 31, 20082017, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied prepay the Term Loans in an amount equal to the prepayment of Escrowed Amount by applying the Loans as set forth funds in Section 2.5(f) on the Prepayment Application DateSegregated Account to such prepayment, without any premium or penalty.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Required Lenders When Borrower or any Restricted Subsidiary sells or otherwise agree, an amount equal to 50% of the Net Cash Proceeds disposes of any issuance Collateral, other than Inventory in the ordinary course of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditurebusiness, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9Casualty Event has occurred, to the extent applicablethen, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth delivered in Section 2.5(f) respect thereof within ten (10) Business Days after the day days of Borrower’s or such Loan Party’s receipt of any proceeds (including insurance proceeds, awards, or compensation) of such sale or other disposition or Casualty Event, Borrower shall repay the Advances made to Borrower in an amount equal to the Net Cash Proceeds, such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such Net Cash Proceeds by any Group MemberProceeds, and until the date of payment, such proceeds shall be held in trust for Agent; provided that no prepayment of notwithstanding the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceforegoing, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to toward the prepayment of the Loans Advances and other amounts as set forth in this Section 2.5(f2.14(a). Notwithstanding the delivery ; and provided further, that so long as no Default or Event of a Reinvestment Notice pursuant to this paragraphDefault shall exist or would result therefrom, the aggregate and such Net Cash Proceeds of Asset Sales and Recovery Events that may such a sale, disposition, or Casualty Event do not exceed $25,000,000 in any single transaction or series of related sales or dispositions, then no such prepayment shall be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice required. The foregoing shall not exceed (x) with respect be deemed to be implied consent to any single Asset Sale or Recovery Event, $30,000,000 such sale otherwise prohibited by the terms and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to conditions hereof. Such repayments shall be applied to make Permitted Net Cash Proceeds Reinvestments described the Advances in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds such order as Agent may determine, subject to Xxxxxxxx’s ability to reborrow Revolving Advances in accordance with the limitations set forth terms hereof.
(b) Subject to the provisions of Section 4.11, Agent shall apply the proceeds of any insurance settlements from casualty losses which are received by Agent to the Advances in clause such order as 55
(xc) or (y) of this sentence[Reserved].
(d) Unless [Reserved].
(e) If any Loan Party receives any proceeds from the Required Lenders issuance or incurrence of any Indebtedness (other than Permitted Indebtedness), Borrower shall repay the Advances made to Borrower in an amount equal to the net proceeds of such issuance or incurrence (i.e., gross proceeds less the reasonable costs of such issuance or incurrence), such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any such sale or issuance otherwise agree, commencing with prohibited by the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower terms and conditions hereof. Such repayments shall be applied to the prepayment of the Loans other Advances in such order as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agreeAgent may determine, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied subject to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts Xxxxxxxx’s ability to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans reborrow Revolving Advances in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidterms hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Veeco Instruments Inc)
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases[Reserved].
(b) Unless the Required Lenders shall otherwise agree and except as set forth Within ten (10) Business Days after any Disposition (other than Inventory in the immediately succeeding sentence with respect to Ordinary Course of Business), Debtor shall repay the incurrence of Permitted Subordinated Indebtedness, Loan in an amount equal to 100% of the Net Cash Proceeds net cash proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on such Disposition, and until the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party payment, such proceeds shall be held in trust for the Lenders; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, if such net cash proceeds do not exceed $5,000,000, then such repayment shall not be required to be so applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to Loan Party reinvests all or any portion of such 121st day to make net cash proceeds within one hundred eighty (v180) a Capital Expendituredays after the receipt of such net cash proceeds; provided, (w) a Restricted Paymentfurther, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases net cash proceeds shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)so reinvested, then the Payment Date such net cash proceeds shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be immediately applied to prepay the prepayment of the Loans as specified above Loan. The foregoing shall not be deemed to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect be implied consent to any assets acquired such sale otherwise prohibited by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesterms and conditions hereof.
(c) Unless Debtor shall repay the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, Loan in an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds insurance proceeds that are not applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment restoration or repair of damaged Collateral within one hundred eighty (180) days of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceinsurance proceeds.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower Each prepayment made pursuant to this Section 2.6 shall be applied to against the prepayment remaining installments of principal of the Loans as set forth in Section 2.5(f) Loan, including, without limitation, the final principal repayment installment on the Prepayment Application Maturity Date, in inverse order of maturity.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the Any prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 2.6 shall be accompanied by accrued interest on the principal amount being prepaid to the date of prepayment.
(f) Except as otherwise expressly provided in this Section 2.6, payments with respect to any subsection of this Section 2.6 are in addition to payments made or required to be made under any other subsection of this Section 2.6.
(g) Each prepayment shall be accompanied by any amount required to be paid pursuant to Section 2.13; provided that, so long as no Default or Event of Default shall have occurred and be continuing, if any prepayment is required to be made under this Section 2.6 on a date other than an Interest Payment Date, in lieu of making any payment pursuant to this Section 2.6 in respect of any such Loan on a date other than an Interest Payment Date, Debtor may, in its sole discretion, deposit an amount sufficient to make any such prepayment on otherwise required to be made hereunder together with accrued interest to the next Interest Payment Date into an account held at, and subject to the sole control of, the Administrative Agent until the next Interest Payment Date, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from Debtor or any other Loan Party) to apply such amount prepaidto the prepayment of such Loans in accordance with this Section 2.6. Upon the occurrence and during the continuance of any Default or Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from Debtor or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with the relevant provisions of this Section 2.6.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Advanced Emissions Solutions, Inc.)
Mandatory Prepayments. (a) Unless Borrower shall, until the Required Lenders otherwise agreeTerm Loan and the CAPEX Term Loan have been paid in full, make a prepayment on such Loans (all such prepayments to be made pro rata between the Term Loan and the CAPEX Term Loan, to the applied to the respective payments thereof in inverse order of maturities) upon the occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following times and in the following amounts (such applicable amounts being referred to as “Designated Proceeds”):
(i) Concurrently with the receipt by any Parent Entity of any net cash proceeds from any Asset Disposition, to the extent such net cash proceeds are not to be reinvested in fixed assets or other similar assets within one hundred eighty (180) days of such Asset Disposition, in an amount equal to 50% one hundred percent (100%) of such net cash proceeds.
(ii) Concurrently with the Net Cash Proceeds receipt by any Parent Entity of any net cash proceeds from any issuance of Capital Stock by Securities of any Loan Party shall be applied Parent Entity (other than Capital Securities issued (A) to Borrower or a Guarantor of Payment or (B) solely to the prepayment of extent the Loans as set forth in Section 2.5(f) on the 121st day after the date proceeds of such issuance of Capital Securities are used to finance Acquisitions permitted under Section 11.4), in an amount equal to one hundred percent (100%) of such net cash proceeds; provided that no prepayment shall be required hereunder from (A) the issuance of Capital Securities in connection with the exercise of any option, warrant or other convertible security of any Parent Entity, or (B) the issuance, award or grant of Capital Securities to eligible participants under a stock plan of Parent.
(iii) Concurrently with the receipt by any Parent Entity of any net cash proceeds from any issuance of any Indebtedness of any Parent Entity in an amount equal to one hundred percent (100%) of such net cash proceeds.
(iv) Within sixty (60) days after the occurrence of a Material Recovery Event with respect to any Parent Entity, in an amount equal to one hundred percent (100%) of the insurance proceeds paid to such Parent Entity in connection with such Material Recovery Event; provided that such Parent Entity will not have to apply any such insurance proceeds as a prepayment on the Loans to the extent such Net Cash Proceeds proceeds are used to replace, rebuild or restore the affected property; so long as (i) Within sixty (60) days after the occurrence of such Material Recovery Event, the appropriate Parent Entity shall furnish to Administrative Agent written notice that such Parent Entity will replace, rebuild or restore the affected property, and (ii) such replacement, rebuilding or restoration is (A) commenced within six months of the date of the Material Recovery Event, and (B) substantially completed within twelve (12) months of such commencement date. Any amounts of such insurance proceeds not used prior applied to such 121st day to make the costs of replacement or restoration shall be applied as a prepayment on the Loans.
(v) If the Total Debt to EBITDA Ratio calculated for a Capital Expenditure, Fiscal Year (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied commencing with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beFiscal Year 2006), is greater than 1.50 to 1.00, within one hundred twenty (y120) a Permitted Acquisition days after the end of such Fiscal Year, in an amount equal to fifty percent (so long as the Borrower shall have complied with the provisions 50%) of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to Excess Cash Flow for such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesFiscal Year.
(b) Unless If, on any day, the Required Lenders Revolving Credit Exposure exceeds the Revolving Credit Commitment, Borrower shall otherwise agree and except as set forth immediately prepay Revolving Loans and/or Cash Collateralize the outstanding Letters of Credit, or do a combination of the foregoing, in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal sufficient to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of eliminate such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesexcess.
(c) Unless If, on any day, the Required Lenders CAPEX Draw Exposure exceeds the CAPEX Draw Facility Commitment, Borrower shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, immediately prepay CAPEX Draw Loans in an amount equal sufficient to 100% of eliminate such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceexcess.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (a) Unless Within two (2) Business Days after any voluntary or involuntary sale or disposition by the Borrower or any of its Subsidiaries of property or assets (other than sales or dispositions which qualify as Permitted Dispositions), the Borrower shall (unless the obligation to make such payment is waived in writing by the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied prior to the prepayment of date on which such payment is required to be made) prepay the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied received by such Person in connection with such sales or dispositions to the extent that the aggregate amount of Net Cash Proceeds received by the Borrower and its Subsidiaries (and not paid to Agent as a prepayment of the Loans as set forth Loans) for all such sales or dispositions shall exceed $1,000,000 in any Fiscal Year. Nothing contained in this subclause (a) shall permit the Borrower or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 2.5(f7.2.
(b) on Within two (2) Business Days after the receipt by the Borrower or any of its Subsidiaries of any Extraordinary Receipts, the Borrower shall (unless the obligation to make such payment is waived in writing by the Required Lenders prior to the date on which such payment is required to be made) prepay the Loans in an amount equal to 100% of such incurrence. An Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(c) Within two (2) Business Days after the issuance or incurrence by the Borrower or any of its Subsidiaries of any Debt (other than Debt permitted under Section 7.12), the Borrower shall (unless the obligation to make such payment is waived in writing by the Required Lenders prior to the date on which such payment is required to be made) prepay the Loans in an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to received by the prepayment of the Loans as set forth Borrower or its Subsidiaries in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of connection with such incurrence (as such date may be extended pursuant to the proviso set forth at the end sale, issuance, or incurrence. The provisions of this sentence) subsection shall not be deemed to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect be implied consent to any assets acquired such issuance or incurrence otherwise prohibited by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions terms and conditions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility this Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(cd) Unless Notwithstanding the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three foregoing, (3i) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment mandatory prepayments of the Loans shall be required under clauses (a) through (c) above to the extent that (A) an "Event of Default" (as defined in the Senior Loan Agreement) exists or would be made pursuant caused thereby, (B) after giving effect to this subsection until such prepayment, "Excess Availability" (as defined in the Senior Loan Agreement) would be less than $8,000,000 or (C) the Net Cash Proceeds and Extraordinary Receipts described in clauses (a) through (c) are applied to prepay the Senior Term Loan, and (ii) no mandatory prepayments of the Loans shall be required under clauses (a) or (b) above if (A) no Default or Event of Default has occurred and is continuing, (B) such Net Cash Proceeds or Extraordinary Receipts are used to replace, repair, or restore the properties or assets in respect of which such Net Cash Proceeds and Extraordinary Receipts were paid, (C) the amount of Net Cash Proceeds to be applied to make proceeds received in respect of such prepayment is at least equal to sales, dispositions, insurance policies, or condemnation awards are less than $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) 1,000,000 in the aggregate during any fiscal year the term of this Agreement, and (D) the Borrower delivers a certificate to Agent within 10 days after such sale or loss, destruction, or taking, stating that such proceeds shall be used to replace, repair, or restore such properties or assets within a period specified in such certificate not to exceed the earlier of (1) 180 days after the receipt of such proceeds, and (2) the Maturity Date (which certificate shall set forth estimates of the Borrowerproceeds to be so expended), $200,000,000and (3) such proceeds are immediately deposited in a Deposit Account subject to a Control Agreement in favor of Agent; provided PROVIDED, HOWEVER, that if all or any portion of such Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be and Extraordinary Receipts not so applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment this clause (e)(ii) are not used to replace, repair or restore such properties or assets within the period specified in the relevant certificate furnished pursuant to this Section 2.5 hereto, such remaining portion shall be made, first, applied to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans in accordance with this clause on the last day of such specified period.
(e) All prepayments under this Section SECTION 2.5 shall be accompanied by the accrued but unpaid interest on the principal amount of the Loans being prepaid to (but not including) the date of such prepayment on the amount prepaidprepayment.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% Immediately upon receipt by Holdings or any of the Net Cash Proceeds its Subsidiaries of any issuance proceeds of Capital Stock any sale, transfer or other disposition by Holdings or any of its Subsidiaries of any of its assets (other than to a Borrower Loan Party shall be applied and other than asset sales permitted pursuant to the prepayment of the Loans as set forth in Section 2.5(f7.6(a) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make and (v) a Capital Expenditureb)), (w) a Restricted Paymentor any proceeds from any casualty insurance policies or eminent domain, (x) a Board-Approved Investment condemnation or a Proceeds Investment (in either case so long as similar proceedings, Holdings and the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Obligations in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus proceeds, net of commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction or event and payable by Holdings or the amount Borrower in connection therewith (in each case, paid to non-Affiliates); provided that the Borrower shall not be required to prepay the Obligations if the following conditions are satisfied: (i) promptly following the sale, transfer or other disposition, or other event giving rise to the receipt of such Net Cash Proceeds proceeds, the Borrower provides to the Administrative Agent a certificate executed by a Responsible Officer of the Borrower (“Reinvestment Certificate”) stating (x) that the applicable event giving rise to the receipt of such proceeds has occurred, (y) that no Default or Event of Default has occurred and is continuing either as of the date of event giving rise to the receipt of such proceeds or as of the date of the Reinvestment Certificate, and (z) a description of the planned Reinvestment of the proceeds thereof, (ii) the Reinvestment of such proceeds is commenced within the Initial Reinvestment Period and completed within the Reinvestment Period, (iii) no Default or Event of Default has occurred and is continuing at the time of the application of such proceeds to Reinvestment and (iv) until Reinvested, such proceeds are held in Controlled Accounts at SunTrust Bank or subject to Control Account Agreements. If any such proceeds have not been Reinvested at the end of the Reinvestment Period, the Borrower shall promptly pay such proceeds to the Administrative Agent, to be applied to repay the Term Loan in accordance with subsection (e) of this Section.
(b) No later than the Business Day following the date of receipt by Holdings or any of its Subsidiaries of any proceeds from any issuance of Indebtedness or equity securities (including any Specified Equity Contribution but excluding an Excluded Equity Contribution) by Holdings or any of its Subsidiaries, or any capital contribution to the Borrower or Holdings (including any Specified Equity Contribution but excluding an Excluded Equity Contribution), Holdings and the Borrower shall prepay the Obligations in an amount equal to all such proceeds (except in the case of proceeds from the issuance of equity securities or capital contributions (other than any Specified Equity Contribution), such amount shall be limited to an amount equal to 50% of such proceeds (and, in the case of any Specified Equity Contribution, such amount shall be equal to 100% of such proceeds)), net of underwriting discounts and commissions and other reasonable and customary transaction costs, fees and expenses properly attributable to such transaction and payable by Holdings or the Borrower in connection therewith (in each case, paid to non-Affiliates); provided that neither Holdings nor the Borrower shall not be required to prepay the Obligations with respect to (i) proceeds of Indebtedness permitted under Section 7.1, (ii) proceeds of Capital Stock issued by a Borrower Loan Party to another Borrower Loan Party and (iii) proceeds of Capital Stock issued by the Exit Facility Agreement Borrower to Holdings (or capital contributions made by Holdings to the Borrower) so long as such proceeds are used to finance a substantially contemporaneous Permitted Acquisition, Capital Expenditure or other Investment permitted under Section 7.4(g). Any such prepayment shall be applied to in accordance with subsection (e) of this Section.
(c) Commencing with the prepayment of the Loans as set forth in Section 2.5(f) within ten Fiscal Year ending December 31, 2016, no later than five (105) Business Days after the day of receipt of any date on which the Borrower’s annual audited financial statements for such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be Fiscal Year are required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to Section 5.1(a), (i) to the immediately preceding sentenceextent that the Total Leverage Ratio as of the last day of such Fiscal Year is greater than or equal to 1.50:1.00, on each Reinvestment Prepayment Date, the Borrower shall prepay the Obligations in an amount equal to the Reinvestment Prepayment Amount with respect 75% of Excess Cash Flow for such Fiscal Year, (ii) to the relevant Reinvestment Event extent that the Total Leverage Ratio as of the last day of such Fiscal Year is less than 1.50:1.00 but greater than or equal to 1.25:1.00, the Borrower shall prepay the Obligations in an amount equal to 50% of Excess Cash Flow for such Fiscal Year, (iii) to the extent that the Total Leverage Ratio as of the last day of such Fiscal Year is less than 1.25:1.00 but greater than or equal to 1.00:1.00, the Borrower shall prepay the Obligations in an amount equal to 25% of Excess Cash Flow for such Fiscal Year and (iv) to the extent that the Total Leverage Ratio as of the last day of such Fiscal Year is less than 1.00:1.00, the Borrower shall not be required to prepay any Obligations in respect of Excess Cash Flow for such Fiscal Year. Any such prepayment shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed accordance with subsection (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (ye) of this sentenceSection. Any such prepayment shall be accompanied by a certificate signed by the Borrower’s chief financial officer certifying in reasonable detail the manner in which Excess Cash Flow and the resulting prepayment were calculated, which certificate shall be in form and substance reasonably satisfactory to the Administrative Agent.
(d) Unless Immediately upon receipt by the Required Lenders shall otherwise agreeParent, commencing with Holdings, the fiscal year Borrower or any of the Subsidiaries of Holdings or the Borrower ending December 31of proceeds of any indemnification payment, 2008purchase price adjustment or similar payment (including receipt thereof by way of set-off rights under the Closing Date Acquisition Agreement) under the Closing Date Acquisition Agreement, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of Holdings and the Borrower shall (and shall cause the Parent to) prepay the Term Loans from such proceeds in an amount necessary so that the percentage of debt in the total pro forma capitalization of Holdings and its Subsidiaries as of such prepayment (taking such prepayment into consideration) shall equal the percentage of debt in the total pro forma capitalization of Holdings and its Subsidiaries as of the Closing Date (it being understood and agreed that any portion of the Holdback Amount (as defined in the Closing Date Acquisition Agreement) that is set off against or is not otherwise required to be paid to the Participating Holders (as defined in the Closing Date Acquisition Agreement) in accordance with the terms of the Closing Date Acquisition Agreement shall be deemed to be received by the Borrower as proceeds pursuant to this clause (d)). Any such prepayment shall be applied to the prepayment in accordance with subsection (e) of the Loans as set forth in Section 2.5(f) on the Prepayment Application Datethis Section.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of Any prepayments made by Holdings and the Borrower ending December 31pursuant to subsection (a), 2008(b), the Applicable Amount (c) or (d) of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower this Section shall be applied as follows: first, to the prepayment Administrative Agent’s fees and reimbursable expenses then due and payable pursuant to any of the Loan Documents; second, to all reimbursable expenses of the Lenders and all fees and reimbursable expenses of the Issuing Bank then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders and the Issuing Bank based on their respective pro rata shares of such fees and expenses; third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; fourth, to the principal balance of the Term Loans, until the same shall have been paid in full, pro rata to the Lenders based on their Pro Rata Shares of the Term Loans, and applied to installments of the Term Loans as set forth in Section 2.5(f) on a pro rata basis (including, without limitation, the final payment due on the Prepayment Application Maturity Date); fifth, to the principal balance of the Swingline Loans, until the same shall have been paid in full, to the Swingline Lender; sixth, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments; and seventh, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Revolving Commitments of the Lenders shall not be permanently reduced by the amount of any prepayments made pursuant to clauses fifth through seventh above, unless an Event of Default has occurred and is continuing and the Required Revolving Lenders so request.
(f) Amounts Anything contained herein to the contrary notwithstanding, so long as any Term Loans are outstanding, in the event Holdings or the Borrower is required to make any mandatory prepayment (a “Waivable Mandatory Prepayment”) of the Term Loans pursuant to this Section, not less than three (3) Business Days prior to the date (the “Required Prepayment Date”) on which Holdings or the Borrower is required to make such Waivable Mandatory Prepayment, the Borrower shall notify the Administrative Agent of the amount of such prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding an outstanding Term Loans of the amount of such Lender'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 by giving written notice to the Borrower and the Administrative Agent of its election to do so on or before the first Business Day prior to the Required Prepayment Date (it being understood that any Lender which does not notify the Borrower and the Administrative Agent of its election to exercise such option on or before the first Business Day prior to the Required Prepayment Date shall be deemed to have elected, as of such date, not to exercise such option to refuse such amount). On the Required Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Mandatory Prepayment, which amount shall be paid to those Lenders that have elected not to exercise such option, based on the Pro Rata Share of each such Lender, to prepay the Term Loans of such Lenders (which prepayment shall be applied in connection accordance with prepayments made pursuant subsection (e) of this Section). Any amounts not used to this Section 2.5 shall be applied to prepay the prepayment of the Term Loans in accordance with Section 2.11(b). The application the above terms in this clause (f) may be retained by the Borrower.
(g) If at any time the aggregate Revolving Credit Exposure of any prepayment all Lenders exceeds the Aggregate Revolving Commitment Amount, as reduced pursuant to this Section 2.5 2.8 or otherwise, the Borrower shall immediately repay the Swingline Loans and the Revolving Loans in an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.19. Each prepayment shall be made, applied as follows: first, to ABR the Swingline Loans and, to the full extent thereof; second, to the Base Rate Loans to the full extent thereof; and third, to the Eurodollar LoansLoans to the full extent thereof. Each If, after giving effect to prepayment of all Swingline Loans and Revolving Loans, the Loans under this Section 2.5 aggregate Revolving Credit Exposure of all Lenders exceeds the Aggregate Revolving Commitment Amount, the Borrower shall be accompanied by Cash Collateralize its reimbursement obligations with respect to all Letters of Credit in an amount equal to such excess plus any accrued interest to the date of such prepayment on the amount prepaidand unpaid fees thereon.
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Mandatory Prepayments. (a) Unless the Required Lenders Administrative Agent shall otherwise agree, if (i) any Debt (excluding any Debt permitted pursuant to Section 9.03) shall be incurred by the Borrower or any Subsidiary, or (ii) any Asset Sale shall occur, then within five (5) Business Days after the date of such incurrence or Asset Sale, the Borrower shall prepay the principal amount of the Loans in an amount equal to 50% the amount of the Net Cash Proceeds of any issuance of Capital Stock such incurrence or Asset Sale; provided, however, that, upon written notice by any Loan Party shall be applied the Borrower to the prepayment of the Loans as set forth in Section 2.5(fAdministrative Agent not less than five (5) on the 121st day Business Days after the date of receipt of any Net Cash Proceeds, such issuance proceeds may be retained by the Borrower and its Subsidiaries (and be excluded from the prepayment requirements of this clause) if (w) the Borrower informs the Administrative Agent in such notice of its good faith intention to apply (or cause one or more of its Subsidiaries to apply) such Net Cash Proceeds to the extent acquisition of other Property or, in the case of Net Cash Proceeds as a result of a Recovery Event, to use such Net Cash Proceeds to repair the affected assets of Borrower or any Subsidiary, (x) within 180 days following the receipt of such Net Cash Proceeds, such proceeds are either applied to such acquisition or repair or the Borrower or a Loan Party has entered into a bona fide binding contract not prohibited by this Agreement committing to make the acquisition or repair with a Person other than a Loan Party or any Affiliate of a Loan Party and such Net Cash Proceeds are not used prior to subsequently applied in accordance with such 121st day to make contract within ninety (v90) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as days after the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to date such Board-Approved Investment or Proceeds Investment, as the case may be)agreement is entered into, (y) a Permitted Acquisition (so long as if such proceeds are not applied to such acquisition or repair in accordance with the foregoing, the Borrower shall have complied with prepay the provisions principal amount of Section 5.9, the Loans in an amount equal to the extent applicable, with respect to any assets acquired by any Group Member pursuant to amount of such Permitted Acquisition), proceeds not so applied and (z) Permitted Open Market Purchases or (zz) a prepayment or repayment in the case of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be received as a result of an Asset Sale, such proceeds being applied or committed to an acquisition do not exceed $5,000,000 during any period of twelve (12) consecutive calendar months. The provisions of this Section 3.02(a) do not constitute a consent to the prepayment incurrence of any Debt or any Asset Sale not otherwise permitted by the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesterms hereof.
(b) Unless the Required Lenders Administrative Agent shall otherwise agree and except as set forth agree, if on any date any Loan Party shall receive a Purchase Price Refund which yields aggregate proceeds to any Loan Party or any of its Subsidiaries in excess of $3,000,000, then, not less than five (5) Business Days after the immediately succeeding sentence with respect to date of receipt by such Person of such Purchase Price Refund, the incurrence Borrower shall prepay the principal amount of Permitted Subordinated Indebtedness, the Loans in an amount equal to 100% the amount of such Purchase Price Refund. The provisions of this Section 3.02 do not constitute a consent to the Net Cash Proceeds consummation of any incurrence disposition of Indebtedness Property or series of any Loan Party (excluding any Indebtedness related dispositions of Property not permitted to be incurred under Section 6.2) shall be applied to by the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end terms of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless Upon the Required Lenders occurrence of a Change in Control, the Borrower shall otherwise agree and unless a Reinvestment Notice is delivered to immediately prepay the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member outstanding principal amount of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceLoans.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under pursuant to this Section 2.5 3.02 shall be applied in accordance with Section 2.06 and shall be accompanied by payment of accrued interest to the date of such prepayment Prepayment Date on the principal amount prepaid.
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Samples: Senior Secured Credit Agreement (Vista Proppants & Logistics Inc.)
Mandatory Prepayments. The Borrowers shall prepay the Term Loans in amounts as provided below, it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), as follows:
(ai) Unless In the Required Lenders otherwise agreeevent of any Casualty Event, an amount, inclusive of any Prepayment Premium, any accrued but unpaid interest (including interest on the amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(fprincipal being prepaid) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureand fees then due and owing, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds received by any Obligor or any of its Subsidiaries with respect thereto; provided, however, so long as no Default or Event of Default has occurred and is continuing, within one hundred eighty (180) days after receipt of such Net Cash Proceeds, the Obligors may apply the Net Cash Proceeds of any incurrence casualty policy up to, but not exceeding $4,000,000 for all losses in the aggregate during the term of this Agreement toward the replacement or repair of destroyed or damaged property; provided, further, that any such replaced or repaired property shall be Collateral in which the Administrative Agent for the benefit of the Lenders has been granted a security interest under the Security Documents.
(ii) In the event any Obligor or any of its Subsidiaries incurs Indebtedness other than Indebtedness that is permitted by Section 9.01 hereof, an amount, inclusive of any Loan Party Prepayment Premium, any accrued but unpaid interest (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to including interest on the prepayment amount of the Loans as set forth in Section 2.5(fprincipal being prepaid) on the date of such incurrence. An amount and fees then due and owing, equal to 100% of the Net Cash Proceeds thereof received by such Person. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(ii) shall not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any incurrence Event of Permitted Subordinated Indebtedness Default which occurs in connection therewith, it being understood that any such Event of any Loan Party shall Default may only be applied to waived with the prepayment express consent of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesMajority Lenders.
(ciii) Unless In the Required Lenders shall otherwise agree event any Obligor or any of its Subsidiaries consummates an Asset Sale other than an Asset Sale that is permitted by Section 9.09 hereof (other than Section 9.09(j)), an amount, inclusive of any Prepayment Premium, any accrued but unpaid interest (including interest on the amount of the principal being prepaid) and unless a Reinvestment Notice is delivered fees then due and owing, equal to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member 100% of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of received by such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied Obligor in connection with prepayments such Asset Sale. For the avoidance of doubt, any prepayment made pursuant to this Section 2.5 3.03(b)(iii) shall not be applied deemed to be a consent to any Asset Sale or a cure or waiver of any Event of Default which occurs in connection therewith, it being understood that any such Event of Default may only be waived with the prepayment express consent of the Loans in accordance with Section 2.11(b). The application Majority Lenders.
(iv) In the event any Obligor or any of any prepayment its Subsidiaries consummates an Asset Sale pursuant to this Section 2.5 shall be made9.09(l), first, an amount (not subject to ABR Loans and, second, any Prepayment Premium) equal to Eurodollar Loans. Each prepayment 75% of the Loans under this Section 2.5 shall be accompanied Net Partnership Agreement Proceeds received by accrued interest to the date of such prepayment on the amount prepaidObligor in connection with such Asset Sale.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied In addition to the prepayment of the Loans as set forth scheduled repayments provided for in Section 2.5(f) on 2.4 hereof, EnergySolutions shall prepay the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (Term Loans in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds (w) from any sale or disposition by Holdco, Parent or any of their Subsidiaries of any incurrence of Indebtedness of interest in any Loan Party (excluding other than from a sale to another Loan Party), (x) except as set forth below, from any Indebtedness permitted to be incurred under Section 6.2Permitted Asset Sales (other than any Excluded Asset Sales) shall be applied to the prepayment of the Loans and (y) except as set forth in Section 2.5(f5.5(e) on the date hereof, received as a result of such incurrencea casualty or condemnation. An Such amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied on the third Business Day following receipt thereof by EnergySolutions or the affected Subsidiary in accordance with Section 2.6(b). EnergySolutions shall also prepay the Term Loans, with application thereto in accordance with Section 2.6(b), in respective amounts equal to the prepayment after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business. Notwithstanding the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableforegoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of EnergySolutions, and so long as no
(1) [Subject to confirm by Citi operations.] Default or Event of Default shall have occurred and be continuing, EnergySolutions may reinvest all or any portion of such Net Proceeds in assets acquired by used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided, however, that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any Group Member capital assets purchased with the Net Proceeds thereof pursuant to such Board-Approved Investment this subsection shall be mortgaged or Proceeds Investmentpledged, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableAdministrative Agent, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment for the benefit of the Indebtedness under the Exit Facility Agreement; provided that Secured Parties and (ii) if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior no longer intended to such 181st day to consummate (x) be so reinvested at any time after delivery of a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notice of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateralreinvestment election, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.6(b). The application For the purposes of calculating the mandatory prepayment required by this Section 2.8(a), “Net Proceeds” shall exclude all Net Proceeds received by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(b) In addition to the scheduled repayments provided for in Section 2.4 hereof, EnergySolutions shall prepay the Term Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Second Amendment Effective Date from any Indebtedness for Money Borrowed incurred by Holdco, EnergySolutions, Parent or any of their Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or the Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition. Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b). For the purposes of calculating the mandatory prepayment required by this Section 2.8(b), “Net Proceeds” shall exclude all Net Proceeds received from any Indebtedness for Money Borrowed incurred by Duratek and its Subsidiaries; provided that “Duratek and its Subsidiaries” shall not include EnergySolutions and its Subsidiaries if EnergySolutions is a Subsidiary of Duratek.
(c) In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof (commencing with the fiscal quarter ended September 30, 2006), on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, EnergySolutions shall prepay the Term Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, EnergySolutions shall not be required prepay the Term Loans.
(d) Any prepayment pursuant to this Section 2.5 2.8 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of made in the Loans under this manner set forth in Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.6(b).
Appears in 1 contract
Mandatory Prepayments. (a) Unless In the Required Lenders otherwise agreeevent of any Asset Sale pursuant to Section 6.4(a), an amount equal to 50% the Borrowers shall, within five (5) Business Days after the receipt of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureAsset Sale, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to apply 100% of the Net Cash Proceeds of such Asset Sale first to prepay all amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7; provided that no prepayment shall be required under this Section 2.6(a) unless and until the aggregate Net Cash Proceeds received during any incurrence fiscal year from Asset Sales exceeds $250,000 in the aggregate (and only such amount in excess of Indebtedness of any Loan Party (excluding any Indebtedness permitted the foregoing threshold amount shall be required to be incurred under Section 6.2) shall be applied to prepay the prepayment Loans); provided further that so long as no Event of Default has occurred and is continuing, the recipient of such Net Cash Proceeds may reinvest such Net Cash Proceeds within three hundred sixty-five (365) days after receipt of such proceeds (or within one hundred eighty (180) days after such proceeds become subject to a binding commitment to reinvest such proceeds within three hundred sixty-five (365) days of receipt thereof), in assets of a kind used or useful in the business of a Borrower or any of its Subsidiaries. Subject to, and in addition to, the provisos in the preceding sentence, the Borrowers may (a) retain up to 50% of the Loans as set forth in Section 2.5(ffirst $10,000,000 of Net Cash Proceeds from an Approved Mitigation Bank Land Sale for working capital and general corporate purposes without having to make a mandatory prepayment with respect thereto and (b) retain any additional Net Cash Proceeds from an Approved Mitigation Bank Land Sale without having to make a mandatory prepayment with respect thereto; provided that (i) the Borrowers deliver a certificate to the Agent stating that such proceeds will be used to pay cash interest on the date Loans pursuant to Section 2.4(a) within ten (10) days of receipt thereof, (ii) such proceeds are deposited in a deposit account subject to the control of the Agent, and (iii) upon the earlier of (x) the expiration of the period specified in the relevant certificate furnished to the Agent or (y) the occurrence and continuance of an Event of Default, such proceeds, if not theretofore so used, shall be used to prepay the Loans.
(b) In the event of any Recovery Event, the Borrowers or any Subsidiary shall within five (5) Business Days after the receipt of Net Cash Proceeds of such incurrence. An amount equal to Recovery Event, apply 100% of the Net Cash Proceeds of such Recovery Event first to prepay all amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7; provided that that no prepayment shall be required under to this Section 2.6(b) unless and until the aggregate Net Cash Proceeds received during any incurrence fiscal year from Recovery Events exceed $250,000 in the aggregate (and only such amount in excess of Permitted Subordinated Indebtedness of any Loan Party the foregoing threshold amount shall be required to be applied to prepay the prepayment Loans); provided further that, and so long as no Event of Default has occurred and is continuing, the Loans as set forth in Section 2.5(frecipient (other than Agent) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such any Net Cash Proceeds are not used prior from a Recovery Event may reinvest such proceeds within three hundred sixty-five (365) days after receipt of such proceeds (or within one hundred eighty (180) days after such proceeds become subject to a binding commitment to reinvest such 121st day to make proceeds within three hundred sixty-five (v365) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions days of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bereceipt thereof), (y) in assets of a Permitted Acquisition (so long as kind used or useful in the business of a Borrower shall have complied with the provisions or any of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesits Subsidiaries.
(c) Unless In the Required Lenders event of any incurrence of Indebtedness by the Borrowers or the Subsidiaries (other than any cash proceeds from the issuance of Indebtedness permitted pursuant to Section 6.1), the Borrowers shall otherwise agree within five (5) Business Days apply 100% of the Net Cash Proceeds received with respect thereto to prepay amounts due under the Loans and unless a Reinvestment Notice the Applicable Repayment Fee thereon in accordance with Section 2.7.
(d) In the event of any public offering of Depositary Receipts, the Borrowers shall within five (5) Business Days, apply (i) in the case of the time period commencing on the Closing Date and ending on, and including, the date that is delivered the six (6) month anniversary of the Closing Date, 25%, (ii) in the case of the time period commencing on the date that is the day immediately following the six (6) month anniversary of the Closing Date and ending on, and including, the date that is the one (1) year anniversary of the Closing Date, 50%, and (iii) at any time thereafter, 75%, of the Net Cash Proceeds received with respect thereto to prepay amounts due under the Loans and the Applicable Repayment Fee thereon in accordance with Section 2.7.
(e) The Agent shall deliver any notice of deposit it receives from the Borrowers under this Section 2.6 to the Administrative Agent Lenders within three (3) Business Days after Days. Following an Event of Default and during the day of receipt by a Group Member continuance thereof, subject to Section 5.5 of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Security Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event proceeds of Collateral, any payments made shall be applied (a) first, to pay all outstanding fees and other amounts owed to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 Agent and (yb) in second, on a pro rata basis, to all amounts due under the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b)Loans. The application of any Any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 2.6 shall be accompanied by the payment of any accrued interest to the date of such prepayment on the amount prepaidand unpaid interest.
Appears in 1 contract
Samples: Credit Agreement (Cadiz Inc)
Mandatory Prepayments. (a) Unless Within ten (10) Business Days after each date on which any Consolidated Company receives any Net Proceeds as a result of or in connection with any offering of equity or securities convertible into equity of any Consolidated Company (other than (x) an issuance of equity to a Credit Party, or (y) an issuance of stock of Parent to Texmaco in connection with an Investment permitted pursuant to Section 8.05(c) provided that the Required Lenders otherwise agreevalue of such stock does not exceed the permitted amount of such Investment), the Term Loans shall be prepaid by an amount equal to the Net Proceeds of such equity or securities offering plus interest accrued and unpaid on the amount of such prepayment.
(b) No mandatory prepayment shall be required pursuant to this Section 2.03(b) until the aggregate amount of Asset Sales occurring after the Closing Date exceeds $1,000,000 (based on the Asset Values thereof, but excluding in the foregoing computation (i) Asset Sales resulting from loss, damage, destruction, or taking where the proceeds thereof are utilized so as to be excluded from the definition of Net Proceeds, and (ii) Asset Sales occurring as a part of any sale and leaseback transactions permitted pursuant to Section 8.06). Whenever such Asset Values shall have equaled or exceeded such amount, then within ten (10) Business Days after each date on which any Consolidated Company receives any Net Proceeds as a result of or in connection with an Asset Sale by any Consolidated Company, the Term Loans shall be prepaid on a pro rata basis by an amount equal to the Net Proceeds of such Asset Sale plus interest accrued and unpaid on the amount of such prepayment; provided that, in the event that the Borrowers intend to reinvest the Net Proceeds of such Asset Sale in other capital assets to be used in the business of the Borrowers, the Borrowers may deliver to the Agents certificate of the president, chief financial officer or other senior officer (a "Reinvestment Certificate") of the relevant Borrower indicating such Borrower's intent to reinvest such Net Proceeds in capital assets which (x) would reasonably be expected to produce the same or greater Consolidated Net Income as the assets subject to the Asset Sale, (y) which will constitute a Capital Expenditure hereunder, and (z) which purchase will take place within 180 days, then the application of the Net Proceeds of such Asset Sale to repay the Term Loans hereunder shall not be required. At the end of such 180 day period, any portion of the Net Proceeds of such Asset Sale in excess of $100,000 which have not been used as set forth in the Reinvestment Certificate shall immediately be used to repay the Term Loans in accordance with this Section. If immediately prior to any Asset Sale the aggregate amount of prior Asset Sales (determined as aforesaid) is less than $1,000,000, but such Asset Sale causes the $1,000,000 threshold amount to be exceeded, then only the portion of the Net Proceeds in excess of the $1,000,000 threshold shall be applied as set forth in the preceding sentence.
(c) On the date Parent delivers its annual financial statements pursuant to Section 7.07(a), but in no event later than the date that occurs ninety (90) days after the last day of each fiscal year of Parent, the Term Loans shall be prepaid on a pro rata basis by an amount equal to 50% of the Net Excess Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) Flow, if any, for such fiscal year plus interest accrued and unpaid on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to prepayment.
(d) Notwithstanding the Indebtedness under the Exit Facility Agreement shall be applied to the provisions of paragraphs (a), (b) and (c) of this Section 2.03, (i) no mandatory prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceunder paragraph (a), on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (xb) or (yc) of this sentence.
Section 2.03 if the amount under paragraph (da), (b) Unless or (c) is less than $100,000 in any instance, and (ii) mandatory prepayment amounts otherwise required under said paragraphs (a), (b) and (c) shall be rounded to nearest multiple of $100,000 (such that, for example, if the Required Lenders shall otherwise agreeportion of Net Proceeds required to be prepaid pursuant to paragraph (a) is $250,000 or more, commencing with the fiscal year of the Borrower ending December 31, 2008but less than $350,000, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower mandatory prepayment amount under this Section 2.03 shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) equal $300,000 plus interest accrued and unpaid on the Prepayment Application Datesuch amount).
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower All mandatory prepayments hereunder shall be applied pro rata to reduce the remaining installments on the Term Loans. Each mandatory prepayment of the Term Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 2.03 shall be applied on a pro rata basis first to Base Rate Advances outstanding under the Term Loans to the prepayment of the Loans in accordance with Section 2.11(b). The full extent thereof before application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidFixed Rate Advances outstanding thereunder.
Appears in 1 contract
Samples: Credit Agreement (Dyersburg Corp)
Mandatory Prepayments. (a) Unless Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral, the respective Borrowing Group shall repay the Advances in an amount equal to the Net Proceeds of such sale, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent provided, however, that this Section 2.21(a) shall not apply to any disposition of Collateral consisting of Equipment which results in Net Proceeds of not more than $500,000 in the aggregate in any fiscal year. Notwithstanding the foregoing, unless and until an Event of Default has occurred and is continuing, Borrowers shall not be so required to use the Net Proceeds from any disposition of Equipment to prepay Advances to the extent such Net Proceeds are used to replace, repair or restore Equipment used in such Loan Parties’ business, provided that (i) such replacement Equipment to be purchased has a fair market value equal to or greater than the fair market value of the Equipment which was sold, (ii) replacement Equipment is purchased by the applicable Borrower within one hundred and eighty (180) days of the Equipment sale, (iii) the replacement Equipment shall be subject to Agent’s security interest created hereunder and (iv) until such time as the proceeds of such disposal are used to acquire such replacement Equipment, such proceeds shall be applied as a repayment of Revolving Advances and an Eligible Reserve in the amount of such repayment shall be established. Such Eligible Reserve shall be released by Agent only in connection with the making of a Revolving Advance to be used by the Borrowers solely for the purposes of funding the acquisition of replacement Equipment pursuant to the terms of this Section 2.21(a); provided, however, that nothing contained herein shall waive or modify any conditions to the making of Revolving Advances or any other provisions of this Agreement. The foregoing shall not be deemed to be implied consent to any such sale otherwise prohibited by the terms and conditions hereof. Any repayments required pursuant to this Section 2.21(a), other than a repayment of Revolving Advances done in connection with the establishment of an Eligible Reserve, shall be held as cash collateral and then applied (a) in the case of any US Borrower, (x) first, to the outstanding principal installments of Term Loan A in the inverse order of the maturities thereof, (y) second, to the remaining Advances (other than Term B Loans) in such order as Agent may determine (together with a corresponding permanent reduction in the Maximum Revolving Advance Amount and the Maximum US Revolving Advance Amount), and (z) third, to the outstanding principal amount of Term Loan B-US, and (b) in the case of any Foreign Borrower, (x) first, to Advances (other than Term Loan B) extended to Foreign Borrowers in such order as Agent may determine (together with a corresponding permanent reduction in the Maximum Foreign Revolving Advance Amount), and (y) second, to the outstanding principal amount of Term Loan B-Foreign, provided, however, that in no event shall there be any application of such cash collateral to any Eurodollar Rate Loans until the expiration of the applicable Interest Period for such Loan. To the extent there are no outstanding Advances, all cash collateral shall be released to the relevant Borrowers unless an Event of Default has occurred which is then continuing. Subject to the terms and provisions of this Agreement, Borrowers may reborrow Revolving Advances repaid hereunder in accordance with the terms hereof.
(b) In the event any Loan Party (other than SGS) receives proceeds in connection with the issuance or incurrence of any Indebtedness other than Indebtedness permitted under Section 7.5, or any Loan Party (other than SGS) receives the proceeds of any cash equity investment other than the Ares Transaction, the respective Borrowing Group shall repay the Advances in an amount equal to the Net Proceeds thereof, such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be an implied waiver of the provisions of Section 7.5 or 10.14 hereof, nor any consent to any such issuance of equity to the extent otherwise prohibited by the terms and conditions hereof. Such repayments shall be held as cash collateral and then applied (a) in the case of any US Borrower or any Guarantor incorporated in the United States of America or Stream BV, (i) first, to the Revolving Advances extended to US Borrowers in such order as Agent may determine, (ii) second, to the outstanding principal installments of Term Loan A in the inverse order of the maturities thereof, and (iii) third, to the outstanding principal amount of the Term Loan B-US and (b) in the case of any Foreign Borrower or Guarantor incorporated other than in the United States of America (other than Stream BV), (i) first, to the Revolving Advances extended to Foreign Borrowers in such order as Agent may determine, and (ii) second, to the outstanding principal amount of the Term Loan B-Foreign, provided, however, that in no event shall there be any application of such cash collateral to any Eurodollar Rate Loans until the expiration of the applicable Interest Period for such Loan. To the extent there are no outstanding Advances, all cash collateral shall be released to the relevant Borrowers, unless an Event of Default has occurred which is then continuing. Subject to the terms and provisions of this Agreement, Borrowers may reborrow Revolving Advances repaid in accordance with the terms hereof.
(c) In the event any Loan Party (other than SGS) receives any Extraordinary Receipts, the applicable Borrowing Group shall repay the Advances in an amount equal to the Net Proceeds thereof, net of any reasonable expenses incurred in collecting such Extraordinary Receipts; such repayments to be made promptly but in no event more than five (5) Business Days following receipt of such Net Proceeds, and until the date of payment, such proceeds shall be held in trust for Agent, provided, however, that this Section 2.21(c) shall not apply to any Extraordinary Receipts, other than Excess Refunds (as defined in the definition of Extraordinary Receipts), which result in Net Proceeds of not more than $500,000 in the aggregate in any fiscal year. Notwithstanding the foregoing, unless and until an Event of Default has occurred and is continuing, Borrowers shall not be so required to use Net Proceeds consisting of insurance proceeds or condemnation awards in respect of Equipment to prepay the Advances to the extent such Net Proceeds are used to replace, repair or restore Equipment used in such Loan Party’s business, provided that (i) replacement Equipment is purchased by the applicable Borrower within one hundred and eighty (180) days of the Equipment sale, (ii) the replacement Equipment shall be subject to Agent’s security interest created hereunder and (iii) until such time as the proceeds of such disposal are used to acquire such replacement Equipment, such proceeds shall be applied as a repayment of Revolving Advances and an Eligible Reserve in the amount of such repayment shall be established. Such Eligible Reserve shall be released by Agent only in connection with the making of a Revolving Advance to be used by the Borrowers solely for the purposes of funding the acquisition of replacement Equipment pursuant to the terms of this Section 2.21(c); provided, however, that nothing contained herein shall waive or modify any conditions to the making of Revolving Advances or any other provisions of this Agreement. Any repayments required pursuant to this Section 2.21(a), other than a repayment of Revolving Advances done in connection with the establishment of an Eligible Reserve, such repayments shall be held as cash collateral and then applied (i) in the case of any US Borrower and any US Guarantor, (x) first, to the outstanding principal installments of Term Loan A in the inverse order of the maturities thereof, (y) second, to the remaining Advances (other than Term Loan B) in such order as Agent may determine (with, in the case of prepayments made with the Net Proceeds of any Collateral not included in the calculation of the Formula Amount (on the Closing Date), a corresponding permanent reduction in the Maximum Revolving Advance Amount and the Maximum US Revolving Advance Amount), and (z) third, to the outstanding principal amount of Term Loan B-US, and (ii) in the case of any Foreign Borrower and any Foreign Guarantor, (x) first, to the Advances (other than Term Loan B) extended to Foreign Borrowers in such order as Agent may determine (with, in the case of prepayments made with the Net Proceeds of any Collateral not included in the calculation of the Formula Amount (on the Closing Date), a corresponding permanent reduction in the Maximum Foreign Revolving Advance Amount applicable to such Foreign Borrower), and (y) second, to the outstanding principal amount of Term Loan B-Foreign, provided, however, that (A) subject in each case to the consent of Required Revolving Lenders otherwise agreeat such time, in lieu of, in the case of clauses (i)(y) and/or (ii)(x) of this Section 2.21(c), permanently reducing the Maximum Foreign Revolving Advance Amount to the extent of prepayments made with Net Proceeds, Agent may, in its sole discretion, elect to repay Advances (other than Term Loan B) extended to Foreign Borrowers by an amount equal to 50% of such Net Proceeds and apply the Net Cash Proceeds remaining 50% to the outstanding principal amount of Term Loan B-US or Term Loan B-Foreign, as applicable, and (B) in no event shall there be any issuance application of Capital Stock by such cash collateral to any Loan Party Eurodollar Rate Loans until the expiration of the applicable Interest Period for such Loan. To the extent there are no outstanding Advances, all cash collateral shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect released to the relevant Reinvestment Borrowers unless an Event shall be applied of Default has occurred which is then continuing. Subject to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales terms and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) provisions of this sentence.
(d) Unless the Required Lenders shall otherwise agreeAgreement, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans Borrowers may reborrow Revolving Advances repaid hereunder in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidterms hereof.
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Stream Global Services, Inc.)
Mandatory Prepayments. (a) Unless If on any date the Required Lenders otherwise agree, an amount equal to 50% Borrower or any of the its Subsidiaries shall receive Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of from any Asset Sale or Recovery Event that results from the sale or other disposition ofthen, or payment with respect to, any of the Collateral, to an amount equal to 10075% of such Net Cash Proceeds minus (“Allocated Proceeds”; provided that the amount Borrower or such Subsidiary may instead deem a portion of such Net Cash Proceeds applied equal to the Indebtedness under first 75% of the Exit Facility Agreement Total Net Proceeds to the Borrower or such Subsidiary from such Asset Sale or Recovery Event, when and as received, to be the Allocated Proceeds of such Asset Sale or Recovery Event), (i) if such Allocated Proceeds are not Reinvestment Proceeds, such Allocated Proceeds shall be applied to on the fifth Business Day after the date such proceeds are received toward the prepayment of the Term Loans as set forth in Section 2.5(for (ii) within ten (10) Business Days after the day of receipt of any if such Net Cash Allocated Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a are Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceProceeds, on each Reinvestment Prepayment Date, an amount equal to the relevant Reinvestment Prepayment Amount shall be applied toward the prepayment of the Term Loans in the manner specified in Section 2.9(c); provided that, notwithstanding clauses (i) and (ii) above, to the extent that the terms of the documentation for any First Lien Notes or Pre-Existing Debt that is secured on a pari passu basis with the Obligations require that a portion of such Allocated Proceeds be applied to purchase First Lien Notes or Pre-Existing Debt pursuant to a mandatory offer to purchase such First Lien Notes or Pre-Existing Debt, such Allocated Proceeds may be applied to prepay Term Loans in accordance with Section 2.9(c) and purchase First Lien Notes and/or Pre-Existing Debt on a pro rata basis based on the respective amounts of Term Loans and First Lien Notes and/or Pre-Existing Debt then outstanding.
(b) If on any date the Borrower or any of its Subsidiaries shall receive Net Cash Proceeds from any Debt Incurrence Prepayment Event then with respect to an amount equal to 100% of such Net Cash Proceeds shall be applied toward the relevant Reinvestment Event prepayment of the Term Loans in the manner specified in Section 2.9(c).
(c) The application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(a) shall be made on a pro rata basis to each Class of Term Loans then outstanding (except to the extent that any Incremental Activation Notice for any Class of Incremental Term Loans or Extended Term Loans provide that such Incremental Term Loans or Extended Term Loans shall participate on a lesser basis or not participate at all). The application of any amounts required to be applied to a prepayment of Term Loans pursuant to Section 2.9(b) shall be made, at the Borrower’s option (by notice to the Administrative Agent), either (i) on a pro rata basis to each Class of Term Loans then outstanding or (ii) to the Term Loans of each Class in direct order of maturity (based on the respective Term Maturity Dates for such Classes) and, if more than one Class of Term Loans has the same Term Maturity Date, on a pro rata basis between such Classes of Term Loans based on the respective principal amount of such Classes of Term Loans then outstanding. Amounts required to be applied to the prepayment of the Term Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower Class shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans of such Class and, second, to Eurodollar LoansLoans of such Class. Each prepayment of the Term Loans under this Section 2.5 2.9 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Credit Agreement (Charter Communications, Inc. /Mo/)
Mandatory Prepayments. (a) Unless The Borrower shall (i) within 30 days following the Required occurrence of a Change in Control, make an offer to each Lender to prepay the entire outstanding principal amount of the Loans pursuant to a Change in Control Offer and (ii) prepay the Loans of all Lenders otherwise agreeproperly accepting such offer of prepayment in accordance with such Change in Control Offer. On the Prepayment Date, an amount the Borrower shall prepay the Loans of all Lenders who accept the Change in Control Offer at a purchase price in cash equal to 50101% of the Net Cash Proceeds principal amount thereof, plus accrued and unpaid interest, if any, to the date of any issuance of Capital Stock by any Loan Party prepayment. Notwithstanding the foregoing, the Borrower shall be applied deemed to have made a Change in Control Offer upon a Change in Control if a third party makes the Change in Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 2.13(a) applicable to a Change in Control Offer made by the Borrower and prepays all or any portion of the Loans as to which offers for prepayment have been validly accepted and not withdrawn pursuant to the terms of such Change in Control Offer. Notwithstanding anything to the contrary set forth herein, an offer to prepay the Loans may be made in advance of a Change in Control, conditional upon such Change in Control, if a definitive agreement is in place with respect to such Change in Control at the time of making such offer. Prior to complying with the provisions of this Section 2.13(a), but in any event within 30 days following a Change in Control, the Borrower shall either repay all outstanding Indebtedness under the Revolving Credit Agreement or obtain the requisite consents, if any, under the Revolving Credit Agreement necessary to permit the prepayment of the Loans as set forth in required by this Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be2.13(a), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on the failure to repay such 121st day a Board-Approved Investment Indebtedness or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases obtain such consent shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to affect the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year obligation of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.13(a). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Senior Secured Interim Loan Agreement (Avis Budget Group, Inc.)
Mandatory Prepayments. Any prepayment under this Section 2.3 shall be applied first to any expenses to which any Purchaser may be entitled, second to accrued interest (including accrued interest on the PIK Notes), third to any applicable Prepayment Fee, fourth to principal installments in the inverse order of their maturities (including capitalized PIK Interest evidenced by the PIK Notes), 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 Holders on a pro rata basis of the original principal amount of each such Holder's Senior Subordinated Note in each of the following circumstances:
(a) Unless If during any fiscal year after the Required Lenders Senior Debt is paid in full and after all commitments of the Senior Lender with respect thereto have been terminated, Parent or any of its Subsidiaries (including without limitation the Company) shall sell or otherwise agreedispose 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 Senior Subordinated Notes in an amount equal to 50% the lesser of (i) the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date aggregate net cash proceeds of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds (minus the cost of any replacement assets or properties purchased within ninety (90) days either before or after such sale) or (ii) the aggregate amount of all Senior Subordinated Obligations (including any applicable Prepayment Fee), such Net Cash Proceeds applied prepayment and premium to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) made within ten (10) Business Days after the day of receipt of such net proceeds.
(b) In the event of any such Net Cash Proceeds by any Group Member; provided that no prepayment sale or other disposition of all or substantially all of the Loans shall be required to be made pursuant to this subsection until stock or assets of Parent or any of its Subsidiaries (including without limitation the amount Company) in a single transaction or series of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If transactions or a Reinvestment Notice is timely delivered pursuant Casualty Event (to the immediately preceding sentenceextent not subsequently applied or committed to apply toward replacement, on each Reinvestment Prepayment Daterestoration, rebuilding or repair of the damaged property within 90 days after the receipt of such net cash proceeds), the Company shall, after the Senior Debt has been paid in full and after all commitments of the Senior Lender with respect thereto have been terminated, prepay the Senior Subordinated Notes in an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment lesser of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to net cash proceeds of such sale or other disposition (minus the limitations set forth in clause cost of any replacement assets or properties purchased within ninety (x90) days either before or after such sale) or (yii) the aggregate amount of this sentence.
all Senior Subordinated Obligations (d) Unless the Required Lenders shall otherwise agreeincluding any applicable Prepayment Fee), commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the such prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment within ten (10) Business Days of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date receipt of such prepayment on the amount prepaidnet proceeds.
Appears in 1 contract
Samples: Note Purchase Agreement (Jotan Inc)
Mandatory Prepayments. (ai) Unless Immediately upon receipt of notice by Agent that the Required Lenders otherwise agreeoutstanding principal balance of the Term Loan exceeds the then extant Maximum Term Loan Amount, Borrower shall prepay the Term Loan in accordance with CLAUSE (D) below in an amount equal to 50% such excess.
(ii) Immediately upon any voluntary or involuntary sale or disposition by Parent or any of its Subsidiaries of property or assets (other than sales or dispositions which qualify as Permitted Dispositions under clauses (b), (c), (e), and (g)) of the definition of Permitted Dispositions):
(A) If the proceeds are from the sale or disposition of any Eligible Equipment, Borrowers shall prepay the outstanding Obligations in accordance with clause (d) below with the Net Cash Proceeds of any issuance of Capital Stock received by any Loan Party shall be applied such Person in connection with such sale or disposition in an amount equal to the prepayment lesser of the Loans as set forth in Section 2.5(f(i) on the 121st day after the date 100% of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make Proceeds, and (vii) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment 100% of the Indebtedness under Gross Liquidation Value of such Eligible Equipment based on the Exit Facility Agreement; provided that if on most recent appraisal of such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Eligible Equipment. Any remaining Net Cash Proceeds shall be applied to the prepayment as follows: (A) so long as no Default or Event of the Loans as specified above to the extent Default shall have occurred and be continuing, (x) 50% of such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9be retained by Borrower, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), and (y) a Permitted Acquisition the remaining Net Cash Proceeds shall be used by Borrowers to prepay the outstanding Obligations in accordance with clause (so long as d) below, and (B) otherwise, 100% of such Net Cash Proceeds shall be used by Borrowers to prepay the Borrower shall have complied outstanding Obligations in accordance with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or clause (zd) Permitted Open Market Purchasesbelow.
(bB) Unless If the Required Lenders proceeds are from the sale or disposition of any other property or assets, Borrowers shall otherwise agree and except as set forth prepay the outstanding Obligations in the immediately succeeding sentence accordance with respect to the incurrence of Permitted Subordinated Indebtedness, clause (d) below in an amount equal to 100% of the Net Cash Proceeds received by such Person in connection with such sale or disposition if the aggregate amount of any incurrence of Indebtedness of any Loan Party Net Cash Proceeds received by Parent and its Subsidiaries (excluding any Indebtedness permitted and not paid to be incurred under Section 6.2) shall be applied to the Agent as a prepayment of the Loans as set forth Obligations) for all such sales or dispositions shall exceed $150,000 in Section 2.5(fany fiscal year. Nothing contained in this subclause (ii) on shall permit Parent or any of its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with SECTION 7.4.
(iii) Immediately upon the date receipt by Parent or any of its Subsidiaries of any Extraordinary Receipts in excess of $50,000 individually or $250,000 in the aggregate during any Fiscal Year (other than Extraordinary Receipts from the Asiana Claim), Borrowers shall prepay the outstanding Obligations in accordance with clause (d) below in an amount equal to 100% of such incurrence. An Extraordinary Receipts, net of any reasonable expenses incurred in collecting such Extraordinary Receipts.
(iv) Immediately upon the issuance or incurrence by Parent or any of its Subsidiaries of any Indebtedness (other than Indebtedness referred to in CLAUSES (A), (B), (C), (D), OR (E) of SECTION 7.1), or the sale or issuance by Parent or any of its Subsidiaries of any shares of its Capital Stock, Borrowers shall prepay the outstanding principal of the Obligations in accordance with clause (d) in an amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth received by Parent or its Subsidiaries in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of connection with such incurrence (as such date may be extended pursuant to the proviso set forth at the end sale, issuance, or incurrence. The provisions of this sentencesubsection (iv) shall not be deemed to be implied consent to any such sale, issuance, or incurrence otherwise prohibited by the extent such Net Cash Proceeds are not used prior to such 121st day to make terms and conditions of this Agreement.
(v) a Capital ExpenditureIf Parent or any of its Subsidiaries has any Excess Cash Flow for any fiscal year (the "RELEVANT FISCAL YEAR"), commencing with the fiscal year ending February 29, 2004, Borrowers shall prepay the outstanding Obligations in accordance with clause (wd) a Restricted Paymentbelow in an amount (the "EXCESS CASH FLOW AMOUNT") equal to 75% of such Excess Cash Flow. Such Excess Cash Flow shall be paid on or before the first day of the second fiscal quarter of the fiscal year following the Relevant Fiscal Year. Notwithstanding the foregoing, (x) a Board-Approved Investment Borrowers shall not be required to prepay the Obligations with Excess Cash Flow if there are any Borrowings during (i) the last 5 days of Parent's first fiscal quarter of its fiscal year immediately following the Relevant Fiscal Year, or a Proceeds Investment (ii) the last 20 Business Days of the Excess Cash Flow Offer (as defined in either case so long as the Borrower Indenture), and (y) Borrowers shall have complied not be required to prepay the Obligations with the provisions of Section 5.9, Excess Cash Flow to the extent applicable, with respect that Parent would have less than $30,000,000 available to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, be borrowed under this Agreement upon consummation of the Excess Cash Flow Offer (as defined in the case may beIndenture), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, after giving PRO FORMA effect to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisitionpurchase of Notes (as defined in the Indenture) in the Excess Cash Flow Offer (as defined in the Indenture), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases . Borrowers shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation be required to prepay the Obligations with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to Excess Cash Flow if the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Excess Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesFlow Amount is less than $5,000,000.
(cvi) Unless Immediately upon the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member Parent or any of the Net Cash Proceeds its Subsidiaries of any Asset Sale insurance proceeds related to a casualty or Recovery Event that results from loss of Collateral or the sale payment of any award or other disposition ofcompensation for condemnation or taking by eminent domain, or payment Borrowers shall prepay the outstanding Obligations in accordance with respect to, any of the Collateral, clause (d) below in an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt proceeds or payment, net of any reasonable expenses incurred in collecting such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale proceeds or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentencepayment.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Loan and Security Agreement (Evergreen International Aviation Inc)
Mandatory Prepayments. The Borrowers shall prepay the Term Loans in amounts as provided below, it being agreed that the relevant payment date shall be deemed to be the “Redemption Date” for purposes of such calculation), as follows:
(ai) Unless In the Required Lenders otherwise agreeevent of any Casualty Event, an amount, inclusive of any Prepayment Premium, any accrued but unpaid interest (including interest on the amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(fprincipal being prepaid) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureand fees then due and owing, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds received by any Obligor or any of its Subsidiaries with respect thereto; provided, however, so long as no Default or Event of Default has occurred and is continuing, within one hundred eighty (180) days after receipt of such Net Cash Proceeds, the Obligors may apply the Net Cash Proceeds of any incurrence casualty policy up to, but not exceeding $4,000,000 for all losses in the aggregate during the term of this Agreement toward the replacement or repair of destroyed or damaged property; provided, further, that any such replaced or repaired property shall be Collateral in which the Administrative Agent for the benefit of the Lenders has been granted a security interest under the Security Documents.
(ii) In the event any Obligor or any of its Subsidiaries incurs Indebtedness other than Indebtedness that is permitted by Section 9.01 hereof, an amount, inclusive of any Loan Party Prepayment Premium, any accrued but unpaid interest (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to including interest on the prepayment amount of the Loans as set forth in Section 2.5(fprincipal being prepaid) on the date of such incurrence. An amount and fees then due and owing, equal to 100% of the Net Cash Proceeds thereof received by such Person. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(ii) shall not be deemed to be a consent to any such incurrence of Indebtedness or a cure or waiver of any incurrence Event of Permitted Subordinated Indebtedness Default which occurs in connection therewith, it being understood that any such Event of any Loan Party shall Default may only be applied to waived with the prepayment express consent of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesMajority Lenders.
(ciii) Unless In the Required Lenders shall otherwise agree event any Obligor or any of its Subsidiaries consummates an Asset Sale other than an Asset Sale that is permitted by Section 9.09 hereof (other than Section 9.09(j)), an amount, inclusive of any Prepayment Premium, any accrued but unpaid interest (including interest on the amount of the principal being prepaid) and unless a Reinvestment Notice is delivered fees then due and owing, equal to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member 100% of the Net Cash Proceeds received by such Obligor in connection with such Asset Sale; provided, however, so long as no Default or Event of Default has occurred and is continuing, within one hundred eighty (180) days after receipt of such Net Cash Proceeds (or if committed to be reinvested within such 180-day period, no later than ninety (90) days after the end of such 180-day period), the Obligors may use such Net Cash Proceeds up to $500,000 with respect to any Asset Sale, but not exceeding $1,000,000 for all Asset Sales in the aggregate per fiscal year, to purchase, replace, repair or restore properties or assets used in the Obligors’ businesses; provided, further, that any such purchased, replaced, repaired or restored property shall be Collateral in which the Administrative Agent for the benefit of the Lenders has been granted a security interest under the Security Documents. For the avoidance of doubt, any prepayment made pursuant to this Section 3.03(b)(iii) shall not be deemed to be a consent to any Asset Sale or Recovery a cure or waiver of any Event of Default which occurs in connection therewith, it being understood that results from any such Event of Default may only be waived with the sale express consent of the Majority Lenders.
(iv) In the event any Obligor or other disposition of, or payment with respect to, any of the Collateralits Subsidiaries consummates an Asset Sale pursuant to Section 9.09(l), an amount (not subject to any Prepayment Premium) equal to 100% of the Net Partnership Agreement Proceeds received by such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied Obligor in connection with prepayments made pursuant to this Section 2.5 shall be applied to such Asset Sale; provided, however, so long as no Default or Event of Default has occurred and is continuing, the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of Obligors may retain such prepayment on the amount prepaidNet Partnership Agreement Proceeds for working capital and general corporate purposes.
Appears in 1 contract
Mandatory Prepayments. (ai) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied Subject to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance proviso below, and except to the extent such Net Cash Proceeds are not have been used prior to such 121st day prepay the obligations under the Parent Credit Agreement, upon the occurrence of any Casualty Event, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to make (v) a Capital Expenditure, (w) a Restricted Payment, the sum of (x) a Board-Approved Investment or a Proceeds Investment one hundred percent (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y100%) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (y) any accrued but unpaid interest on such principal amount of the Term Loan being prepaid; provided that so long as no Default or Event of Default has occurred and is continuing at the time the Borrower or any Obligor shall have received such Net Cash Proceeds, if, within five (5) Business Days following the occurrence of any incurrence such Casualty Event, a Responsible Officer of Indebtedness the Borrower may deliver to the Administrative Agent a notice (each, a “Casualty Event Reinvestment Notice”) to the effect that the Borrower or applicable Obligor intends to apply the Net Cash Proceeds from such Casualty Event to acquire, replace or rebuild the property subject to such Casualty Event or to the cost of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall purchase or construction of other assets useful in the business of Parent or its Subsidiaries, then such Net Cash Proceeds of such Casualty Event may be applied to for such purpose in lieu of such mandatory prepayment, provided further that, in the event that Net Cash Proceeds have not been so applied within one hundred eighty (180) days following the occurrence of such Casualty Event, the Borrower shall make a mandatory prepayment of the Loans as set forth Term Loan in Section 2.5(f) on the date of such incurrence. An an aggregate amount equal to the sum of (A) one hundred percent (100% %) of the unused balance of such Net Cash Proceeds received by the Borrower or any other Obligor as a result of such Casualty Event up to the principal amount outstanding of the Term Loan, and (B) any accrued but unpaid interest (including, but not limited to, any accrued but uncapitalized PIK Interest on the First Amendment Term Loan and the Second Amendment Term Loan) on such principal amount of the Term Loan being prepaid, provided, further, that to the extent that the property subject to the Casualty Event is Collateral, then any such acquired, replaced, repaired, purchased or constructed property shall be Collateral in which the Administrative Agent, for the benefit of the Lenders, has been granted a security interest under the Security Documents.
(ii) Upon the disposition and sale of the Tucson Real Estate in accordance with Section 8.23, the Borrower shall make a mandatory prepayment of the Term Loan in an aggregate amount equal to the lesser of (i) the entire outstanding Obligations as of such date and (ii) one hundred percent (100%) of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall received by the Borrower in connection with such sale, to be applied pursuant to Section 3.03(d) below.
(iii) Upon the receipt of upfront proceeds pursuant to Section 8.18(b), Parent shall make a mandatory prepayment of the Loans Term Loan in an aggregate amount not to exceed the lesser of (i) the entire outstanding Obligations as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence date and (as such date may ii) $2,000,000, to be extended applied pursuant to the proviso set forth at the end of this sentenceSection 3.03(d) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreementbelow; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter sale of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)North Carolina Business occurs, then the Payment Date no mandatory prepayment shall be extended required pursuant to this clause (b)(iii).
(iv) Upon the 181st day after such incurrencesale of the North Carolina Business in accordance with Section 8.27, and on such day the relevant Net Cash Proceeds Borrower shall be applied to the make a mandatory prepayment of the Loans as specified above Term Loan in an aggregate amount equal to the extent lesser of (i) the entire outstanding Obligations as of such Net Cash Proceeds are not used prior to such 181st day to consummate date and (xii) a Board-Approved Investment or Proceeds Investment one hundred percent (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y100%) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from received by the sale or other disposition ofBorrower in connection with such sale, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, payment of the “Obligations” (as defined in the Parent Credit Agreement) and second, pursuant to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid3.03(d) below.
Appears in 1 contract
Samples: Forbearance Agreement and Second Amendment to Credit Agreement and Guaranty (Icagen, Inc.)
Mandatory Prepayments. (ai) Unless [Intentionally Omitted]
(ii) Dispositions. Subject to Section 2.4(e)(v), within 1 Business Day of the Required Lenders otherwise agree, an amount equal to 50% date of receipt by Borrower or any of its Subsidiaries of the Net Cash Proceeds of any issuance voluntary or involuntary sale or disposition by Borrower or any of Capital Stock by its Subsidiaries to any Loan Party shall be applied Person other than Borrower or a Subsidiary thereof of assets (including casualty losses or condemnations but excluding sales or dispositions permitted pursuant to clauses (a) (subject to the prepayment of the Loans as dollar basket set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make clause (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bea)), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless of Section 6.8), Borrower shall prepay the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member outstanding principal amount of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment Obligations in accordance with respect to, any of the Collateral, Section 2.4(f)(ii) in an amount equal to 100% of such Net Cash Proceeds minus (including 100% of the amount Net Cash Proceeds in respect of condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions; provided that, so long as (A) no Default or Event of Default shall have occurred and is continuing, (B) Borrower shall be permitted to apply such Net Cash Proceeds to the costs of replacement of the properties or assets that are the subject of such sale or disposition or the cost of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries, and (C) Borrower or its Subsidiaries, as applicable, complete such replacement, purchase, or construction within 180 days after the initial receipt of such Net Cash Proceeds applied Proceeds, Borrower and its Subsidiaries shall have the option to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any apply such Net Cash Proceeds by any Group Member; provided that no prepayment to the costs of replacement of the Loans assets that are the subject of such sale or disposition or to the costs of purchase or construction of other assets useful in the business of Borrower or its Subsidiaries unless and to the extent that such applicable period shall have expired without such replacement, purchase or construction being made or completed, in which case, any amounts not so applied shall be required paid to be made pursuant to this subsection until the amount of Net Cash Proceeds to be Agent and applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.4(f)(ii). The application Nothing contained in this Section 2.4(e)(ii) shall permit Borrower or any of its Subsidiaries to sell or otherwise dispose of any prepayment pursuant to assets other than in accordance with Section 6.8. For the avoidance of doubt, this Section 2.5 2.4(e)(ii) shall be made, first, not apply to ABR Loans and, second, to Eurodollar Loans. Each prepayment any issuances or sales of the Loans under this Section 2.5 shall be accompanied Equity Interests by accrued interest to the date of such prepayment on the amount prepaidBorrower.
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Mandatory Prepayments. (a) Unless Subject to Section 7.1 hereof, when any Borrower sells or otherwise disposes of any Collateral (other than (x) Inventory in the Required Lenders otherwise agreeOrdinary Course of Business or (y) pursuant to a Permitted Factoring Agreement, the proceeds of which shall be remitted in accordance with Section 4.8(h)), Borrowers shall repay the Advances in an amount equal to 50% of the Net Cash Proceeds of such sale in excess of $500,000, such repayments to be made promptly but in no event more than one (1) Business Day following receipt of such net proceeds, and until the date of payment, such proceeds shall be held in trust for Agent. The foregoing shall not be deemed to be implied consent to any issuance of Capital Stock such sale otherwise prohibited by any Loan Party the terms and conditions hereof. Such repayments shall be applied to the prepayment Advances until the Advances equal $0 (including cash collateralization of all Obligations relating to any outstanding Letters of Credit in accordance with the Loans provisions of Section 3.2(b)) in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof. Notwithstanding the forgoing, Borrowers shall have the right to reinvest Net Cash Proceeds of such sale within 120 days of receipt thereof so long as no Event of Default is continuing and upon receipt of such Net Cash Proceeds until such reinvestment, such Net Cash Proceeds are deposited in a Depository Account maintained at Agent over which Agent has control (as defined in the Uniform Commercial Code or the PPSA, as applicable).
(b) In the event of any issuance or other incurrence of Indebtedness (other than Permitted Indebtedness) by any Credit Party or the issuance of any Equity Interests by any Credit Party (other than issuances of Equity Interests of Parent that do not constitute Disqualified Equity Interests so long as no Cash Dominion Period is then in existence), Borrowers shall, no later than one (1) Business Day after the receipt by the Credit Parties of (i) the net cash proceeds from any such issuance or incurrence of Indebtedness or (ii) the net cash proceeds of any issuance of Equity Interests, as applicable, repay the Advances in an amount equal to (x) one hundred percent (100%) of such net cash proceeds in the case of such incurrence or issuance of Indebtedness and (y) one hundred percent (100%) of such net cash proceeds in the case of an issuance of Equity Interests. Such repayments will be applied in the same manner as set forth in Section 2.5(f2.19(a) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchaseshereof.
(c) Unless All proceeds received by the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Credit Parties or Agent within three (3i) Business Days after the day under any insurance policy on account of receipt by a Group Member of the Net Cash Proceeds damage or destruction of any Asset Sale assets or Recovery Event that results from the sale or other disposition ofproperty of any Credit Parties, or payment with respect to(ii) as a result of any taking or condemnation of any assets or property, any of the Collateralin each case, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid6.6 hereof.
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Samples: Revolving Credit, Security and Guaranty Agreement (ROC Energy Acquisition Corp.)
Mandatory Prepayments. (i) Within forty-five (45) days (or, in the case of a reduction of Term Loan Commitments, within five (5) Business Days) of the receipt by the Borrower or any of its Wholly-owned Subsidiaries of any Net Debt Proceeds from the incurrence of any Indebtedness pursuant to clause (a) Unless the Required Lenders otherwise agreedefinition thereof by the Borrower or any of its Wholly-owned Subsidiaries (other than Excluded Debt), the Borrower shall prepay any outstanding Term Loans or reduce any outstanding Term Loan Commitments in an amount equal to 50% one hundred percent (100%) of such Net Debt Proceeds, to be applied as set forth in Section 2.9. Nothing in this Section 2.8(c)(i) shall be construed to permit or waive any Default or Event of Default arising from any incurrence of Indebtedness not permitted under the terms of this Agreement unless resulting in a payment in full.
(ii) From and after the Amendment No. 2 Effective Date, (x) if the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $15.0 million in a single transaction or in a series of related transactions or $25.0 million in the aggregate for all such Dispositions or Events of Loss during such fiscal year, then promptly and in any event within five (5) Business Days of receipt by the Borrower or the Restricted Subsidiary of the Net Cash Proceeds of any issuance such Disposition or such Event of Capital Stock by any Loan Party Loss, the Borrower shall be applied prepay the Term Loans, in an aggregate amount equal to the prepayment 100.00% of the Loans amount of all such Net Cash Proceeds in excess of the amount specified above and (y) promptly and in any event within five (5) Business Days of receipt by the Borrower or any Restricted Subsidiary of the Net Cash Proceeds in respect of any Disposition of the Great Oaks Property (including the Great Oaks Sale/Leaseback Transaction), the Borrower shall prepay the Term Loans, in an aggregate amount equal to 50.00% of the amount of all such Net Cash Proceeds; provided that, in the case of each Disposition (other than any Disposition of the Great Oaks Property) and Event of Loss, if the Borrower or the applicable Restricted Subsidiary intends to invest or reinvest, as set forth applicable, within twelve (12) months of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets used or useful in the operations of the Borrower or its Subsidiaries, then the Borrower shall not be required to make a mandatory prepayment under this Section 2.5(f) on the 121st day after the date in respect of such issuance Net Cash Proceeds to the extent such Net Cash Proceeds are not used prior to actually invested or reinvested within such 121st day to make (v) a Capital Expendituretwelve-month period, (w) or the Borrower or a Restricted Payment, (x) a Board-Approved Investment Subsidiary has committed to so invest or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to reinvest such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent during such twelve-month period and such Net Cash Proceeds are so reinvested within 180 days after the expiration of such twelve-month period; provided, however, that if any Net Cash Proceeds have not used been so invested or reinvested prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the expiration of the applicable period, the Borrower shall have complied with promptly prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth Term Loans in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds in excess of the amount specified above not so invested or reinvested; provided, further, that if, at the time that any such prepayment would be required hereunder, the Borrower is required to prepay or 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 such Net Cash Proceeds (such Indebtedness (or Refinancing Indebtedness in respect thereof) required to be prepaid or offered to be so repurchased, the “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash 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 (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time; provided that 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 the amount of the prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.8(c)(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 be applied to prepay the Indebtedness under Term Loans in accordance with the Exit Facility Agreement terms hereof. The amount of each such prepayment shall be applied to the prepayment outstanding Term Loans of each Class pro rata, until paid in full.
(iii) [Reserved].
(iv) [Reserved].
(v) [Reserved].
(vi) Notwithstanding any provision under this Section 2.8(c) to the Loans as set forth in contrary, (A) any amounts that would otherwise be required to be paid by the Borrower pursuant to Section 2.5(f2.8(c)(ii) within ten (10) Business Days after above shall not be required to be so prepaid to the day of receipt of extent any such Disposition is consummated by a Foreign Subsidiary, such Net Cash Proceeds in respect of any Event of Loss are received by a Foreign Subsidiary or such Indebtedness is incurred by a Foreign Subsidiary, for so long as the repatriation to the United States of any Group Member; provided that no prepayment such amounts would be prohibited under any Applicable Laws (including any such laws with respect to financial assistance, corporate benefit, thin capitalization, capital maintenance, liquidity maintenance and similar legal principles, restrictions on upstreaming of cash intra group and the fiduciary and statutory duties of the directors of the relevant Subsidiaries) and (B) if the Borrower determines in good faith that the repatriating of any amounts required to mandatorily prepay the Loans pursuant to Section 2.8(c)(ii) above would result in a tax liability that is material to the amount of funds otherwise required to be repatriated (including any withholding tax) (such amount in clauses (A) and (B), a “Restricted Asset Sale Amount”), the amount the Borrower shall be required to mandatorily prepay pursuant to Section 2.8(c)(ii) shall be reduced by the Restricted Asset Sale Amount until such time as it may repatriate such Restricted Asset Sale Amount without incurring such tax liability.
(vii) Notwithstanding the foregoing, each Term Lender shall have the right to reject its applicable Term Loan Percentage of any mandatory prepayment of the Term Loans pursuant to Section 2.8(c)(ii) above (each such Lender, a “Rejecting Lender”); provided that any amount rejected by a Rejecting Lender may be retained by the Borrower (the aggregate amount of such proceeds so rejected as of any date of determination, the “Declined Proceeds”).
(viii) Unless the Borrower otherwise directs, prepayments of Term Loans under this Section 2.8(c) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Term Benchmark Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(c) shall be made pursuant to this subsection until by the payment of the principal amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000prepaid together with any amounts due the Lenders under Section 8.1. If a Reinvestment Notice is timely delivered pursuant to Except as otherwise provided in Section 2.8(c)(ii), mandatory prepayments of the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event Term Loans shall be applied to the prepayment Term Loans on a pro rata basis and applied to the installments thereof as directed by the Borrower, or if not so specified before the date of required payment, in the Loans as set forth in Section 2.5(f). Notwithstanding the delivery direct order of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) maturity other than with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application portion of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied installment held by accrued interest to the date of such prepayment on the amount prepaida Rejecting Lender.
Appears in 1 contract
Mandatory Prepayments. (a) Unless Immediately upon receipt by the Required Lenders otherwise agreeBorrower or any of its Restricted Subsidiaries of any Net Proceeds of any sale or disposition by the Borrower 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 Obligations in an amount equal to 50% all such Net Proceeds; provided that the Borrower shall not be required to prepay the Obligations with respect to Net Proceeds from the sales of assets in the ordinary course of business, from sales of assets or from any casualty insurance policies or eminent domain, condemnation or similar proceedings that are reinvested in assets then used or usable in the business of the Borrower and its Restricted Subsidiaries (other than in current assets) within 12 months following receipt thereof; provided that if any Net Cash Proceeds of are not so reinvested by the deadline specified above or if any issuance of Capital Stock by such Net Proceeds are no longer intended to be or cannot be so reinvested, any Loan Party such Net Proceeds shall be applied applied, in accordance with DB1/ 110470318.9 63 Section 2.12(d), to the prepayment of the Term Loans as set forth in this Section 2.5(f) 2.12. If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Indebtedness outstanding at such time that is secured by a Lien on the 121st day after Collateral ranking pari passu with the date of Lien securing the Term Loans (such issuance Indebtedness, “Other Pari Indebtedness”) pursuant to the extent terms of the documentation governing such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied Indebtedness with the provisions of Section 5.9Net Proceeds from such disposition, to the extent applicablecasualty insurance policy or eminent domain, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment condemnation or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein)similar proceeding, then the Payment Date shall be extended Borrower, at its election, may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the applicable Class(es) of Term Loans and Other Pari Indebtedness at such time) to the 181st day after outstanding Classes of Term Loans and such incurrenceOther Pari Indebtedness; provided, that the portion of such Net Proceeds allocated to the Other Pari Indebtedness shall not exceed the amount of such Net Proceeds required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and on the remaining amount, if any, of such day the relevant Net Cash Proceeds shall be applied allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof to the prepayment of the Term Loans as specified above and to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment repurchase or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions prepayment of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Other Pari Indebtedness, an and the amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in that would have otherwise been required pursuant to this Section 2.5(f2.12(a) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) reduced accordingly; provided, that to the extent the holders of Other Pari Indebtedness decline to have such Net Cash Proceeds are not used prior to such 121st day to make indebtedness repurchase or prepaid, the declined amount shall promptly (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (and in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) event within ten (10) Business Days after the date of such rejection) be applied to prepay the applicable Class(es) of Term Loans in accordance with the terms hereof, (b) No later than the Business Day following the date of receipt by the Borrower or any of its Restricted Subsidiaries of any Net Proceeds from any issuance of Indebtedness by the Borrower or any of its Restricted Subsidiaries, (i) that is not permitted to be issued or incurred pursuant to Section 7.1 or (ii) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of any Class of Term Loans, the Borrower shall prepay the Obligations in an amount equal to all such Net Proceeds. Any such prepayment shall be applied in accordance with subsection (d) of this Section.
(c) No later than five (5) Business Days after the date on which the Borrower’s annual audited financial statements for such Fiscal Year are required to be delivered pursuant to Section 5.1(a) (beginning with the Fiscal Year ending December 31, 2021), (i) to the extent that the Total Net Leverage Ratio as of the last day of receipt such Fiscal Year is greater than 2.50:1.00, the Borrower shall prepay the Obligations in an amount equal to 50% of any Excess Cash Flow for such Fiscal Year, (ii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.50:1.00 but greater than 2.00:1.00, the Borrower shall prepay the Obligations in an amount equal to 25% of Excess Cash Proceeds by any Group MemberFlow for such Fiscal Year and (iii) to the extent that the Total Net Leverage Ratio as of the last day of such Fiscal Year is less than or equal to 2.00:1.00, no prepayment shall be required; provided that no such amount shall be reduced on a dollar-for-dollar basis for such Fiscal Year by the aggregate amount of voluntary prepayments of Term Loans (and, to the extent the Revolving Commitments are permanently reduced in a corresponding amount pursuant to Section 2.8, Revolving Loans) that rank pari passu in right of payment and security with the Term Loans made pursuant to Section 2.11, in each case, to the extent made with Internally Generated Cash during such fiscal year or after such Fiscal Year and prior to the time such prepayment is due (without duplication to subsequent years). If at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Pari Indebtedness, then the Borrower, at its election, may apply Excess Cash Flow on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Pari Indebtedness at such time) provided that the portion of such Excess Cash Flow allocated to the Other Pari Indebtedness shall not exceed the amount of such Excess Cash Flow required to be allocated to the Other Pari Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Excess Cash Flow shall be allocated to the applicable Class(es) of Term Loans in accordance with the terms hereof) to the prepayment of such Class(es) of Term Loans and to the repurchase or prepayment of Other Pari Indebtedness, and the amount of prepayment of the applicable Class(es) of Term Loans that would have
(d) Any prepayments made by the Borrower pursuant to subsections (a), (b) or (c) of this Section shall be applied as follows: first, 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; second, to the principal balance of the Revolving Loans, until the same shall have been paid in full, pro rata to the Lenders based on their respective Revolving Commitments (with no permanent reduction in the Revolving Commitments); and third, to Cash Collateralize the Letters of Credit in an amount in cash equal to the LC Exposure as of such date plus any accrued and unpaid fees thereon. The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (a) and (c) of this subsection until Section 2.12 prior to 1:00 p.m. at least five (5) 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 of Net Cash Proceeds to be applied to make such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to notice and of such Xxxxxx’s Pro Rata Share of the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale Class of Term Loans. Each Lender may reject all or Recovery Eventa portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, $30,000,000 and (ythe “Declined Proceeds”) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are Term Loans required to be applied made pursuant to make Permitted Net Cash Proceeds Reinvestments described in clause clauses (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (xa) or (yc) of this sentence.
Section 2.12 by providing written notice (deach, a “Rejection Notice”) Unless to the Required Lenders 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 otherwise agree, commencing with specify the fiscal year principal amount of the Borrower ending December 31, 2008, mandatory prepayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Applicable Amount Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Adjusted Excess Cash Flow for Term Loans to be rejected, any fiscal year such failure will be deemed an acceptance of the Borrower total amount of such mandatory repayment of Term Loans. Any Declined Proceeds shall be applied to retained by the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application DateBorrower (“Retained Declined Proceeds”).
(e) Unless If at any time the Required aggregate Revolving Credit Exposure of all Lenders shall otherwise agreeexceeds the Aggregate Revolving Commitment Amount, commencing with the fiscal year of the Borrower ending December 31as reduced pursuant to Section 2.8 or otherwise, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to immediately repay the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Revolving Loans in accordance an amount equal to such excess, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Amneal Pharmaceuticals, Inc.)
Mandatory Prepayments. (a) Unless the Required Lenders shall otherwise agree, an amount equal if any Credit Party shall incur any Indebtedness (other than Permitted Indebtedness) or issue any Capital Stock (other than to 50% its parent company), then upon receipt of the Net Cash Proceeds from such incurrence or issuance, Borrower shall prepay (i) the principal amount of the Loans or (ii) the principal amount of the First Lien Term Loans, in each case, with a corresponding permanent reduction to the principal amount thereof, in each case, in an amount equal to the amount of the Net Cash Proceeds received therefrom. The provisions of this Section 2.7(a) do not constitute a consent to the incurrence of any Indebtedness or the issuance of any Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesCredit Party.
(b) Unless the Required Lenders shall otherwise agree and except as set forth agree, if on any date any Credit Party shall receive Net Cash Proceeds from any Asset Sale which, together with Net Cash Proceeds from all other Asset Sales of the Credit Parties, exceeds $500,000 in the immediately succeeding sentence aggregate in any twelve-month period (such amount, “Excess Proceeds”), then upon receipt by such Person of such Excess Proceeds, Borrower shall prepay (i) the principal amount of the Loans or (ii) the principal amount of the First Lien Term Loans, in each case, with respect a corresponding permanent reduction to the incurrence of Permitted Subordinated Indebtednessprincipal amount thereof, in each case, in an amount equal to 100% the amount of such Excess Proceeds; provided that, if Borrower shall deliver to Agent a certificate of a Responsible Officer to the effect that such Credit Party intends to reinvest the Excess Proceeds from such Asset Sale (or a portion thereof specified in such certificate),within twelve months after receipt of such Excess Proceeds, in Qualified Investments, then so long as no Default has occurred and is continuing or would result therefrom, no prepayment shall be required pursuant to this paragraph in respect of the Net Cash Excess Proceeds specified in such certificate; provided further that to the extent any such Excess Proceeds therefrom have not been so reinvested by the end of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under such twelve-month period, a prepayment in accordance with this Section 6.22.7(b) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) required on the date first Business Day after the expiration of such incurrence. An period in an amount equal to 100% such Excess Proceeds that have not been so invested. The provisions of this Section do not constitute a consent to the Net Cash Proceeds consummation of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesDisposition.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the agree, if on any date any Credit Party shall receive Net Cash Proceeds of any Asset Sale or from a Casualty Recovery Event that results from exceeds $250,000 in the sale or other disposition ofaggregate, or payment with respect tothen upon receipt by such Person of such Net Cash Proceeds, any Borrower shall prepay (i) the principal amount of the CollateralLoans or (ii) the principal amount of the First Lien Term Loans, in each case, with a corresponding permanent reduction to the principal amount thereof, in each case, in an amount equal to 100% of such Net Cash Proceeds minus the amount in excess of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence250,000.
(d) Unless Upon the Required Lenders occurrence of a Change of Control, Borrower shall otherwise agreeimmediately provide written notice thereof to Agent, commencing with and each Lender, at its sole discretion, may require Borrower to immediately prepay all, but not less than all, of outstanding principal amount of such Lender’s Loans plus (i) the fiscal year accrued but unpaid interest thereon plus (x) the Applicable Premium if such Change of Control shall occur prior to the second anniversary of the Borrower ending December 31, 2008, the Applicable Amount Closing Date or (y) 101% of the Adjusted Excess Cash Flow for any fiscal year outstanding principal amount of such Lender’s Loans if such Change of Control shall occur after the second anniversary of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Closing Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the Each prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 2.7 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 2.9 and shall be made, first, accompanied by a payment of the accrued interest (whether accrued as Cash Interest or PIK Interest) to ABR Loans and, second, to Eurodollar Loansthe Prepayment Date on the principal amount prepaid together with all other amounts then owing under this Agreement or any Loan Document including any fees and expenses then due and payable under any Loan Document. Each prepayment of the Loans under pursuant to this Section 2.5 2.7 shall be accompanied by accrued interest to the date concurrent payment of such prepayment on the amount prepaidApplicable Premium.
Appears in 1 contract
Mandatory Prepayments. (a) Unless Subject to Section 4.3 hereof, when any Borrower sells or otherwise disposes of any Collateral other than Inventory in the Required Lenders otherwise agreeOrdinary Course of Business, Borrowers shall repay the Advances in an amount equal to 50% of the Net Cash Proceeds of any issuance such sale or disposition, such repayments to be made promptly but in no event more than three (3) Business Days following receipt of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after such Net Cash Proceeds, and until the date of payment, such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied held in trust for Agent. The foregoing shall not be deemed to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect be implied consent to any assets acquired such sale otherwise prohibited by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of terms and conditions hereof. Such repayments required under this Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.22.21(a) shall be applied to the prepayment Advances in such order as Agent may determine, subject to Borrowers’ ability to reborrow Revolving Advances in accordance with the terms hereof.
(b) In the event of any issuance or other incurrence of Indebtedness or Equity Interests (excluding non-cash equity transactions resulting from employee stock option or other incentive plans of Empeiria and Indebtedness or Equity Interests issued by a Borrower to another Borrower) by any Borrower or any of its Subsidiaries, including any capital contributions to Empeiria by any of Empeiria’s shareholders, Borrowers shall, if an Event of Default exists at the Loans as set forth time of issuance or incurrence, repay the Advances in Section 2.5(f) on the date of such incurrence. An an amount equal to one hundred percent (100% %) of the Net Cash Proceeds received by such Borrowers or Subsidiaries (or any of them) in connection therewith no later than one (1) Business Day after such receipt. Nothing in this Section 2.21(b) shall be deemed or construed to permit any such issuance or incurrence of Permitted Subordinated Indebtedness or Equity Interests that is prohibited under the terms of this Agreement or any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesOther Documents.
(c) Unless If any of the Required Lenders shall otherwise agree Borrowers or any of their respective Subsidiaries receives any Extraordinary Receipts, Borrowers shall, if an Event or Default exists at the time of such receipt, repay the Advances in an amount equal to one hundred percent (100%) of such Extraordinary Receipts (net of any reasonable fees, costs and unless a Reinvestment Notice is delivered to the Administrative Agent within expenses incurred in collecting such Extraordinary Receipts) no later than three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds such receipt.
(d) Subject to Section 4.11, when any Borrower receives cash proceeds of any Asset Sale or Recovery Event that results from insurance (including business interruption and key man insurance), Borrowers shall repay the sale or other disposition of, or payment with respect to, any of the Collateral, Advances in an amount equal to 100% such cash proceeds (net of any reasonable fees, costs and expenses incurred in collecting such Net Cash Proceeds minus cash proceeds) no later than three (3) Business Days after such receipt, and until the amount date of payment, such Net Cash Proceeds applied to the Indebtedness proceeds shall be held in trust for Agent. Such repayments required under the Exit Facility Agreement this Section 2.21(d) shall be applied to the prepayment of the Loans Advances in such order as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceAgent may determine, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied Borrowers’ ability to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans reborrow Revolving Advances in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidterms hereof.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Empeiria Acquisition Corp)
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied In addition to the prepayment of scheduled repayments provided for in Section 2.4 hereof, Duratek shall prepay the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds (w) from any sale or disposition by Duratek or any of its Subsidiaries of any incurrence of Indebtedness of interest in any Loan Party (excluding other than from a sale to another Loan Party), (x) except as set forth below, from any Indebtedness permitted to be incurred under Section 6.2Permitted Asset Sales by Duratek or any of its Subsidiaries (other than any Excluded Asset Sales) shall be applied to the prepayment of the Loans and (y) except as set forth in Section 2.5(f5.5(e) on the date hereof, received by Duratek or any of such incurrenceits Subsidiaries as a result of a casualty or condemnation; provided that if EnergySolutions is a Subsidiary of Duratek, each reference to Duratek and/or its Subsidiaries shall include Parent and/or its Subsidiaries. An Such amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied on the third Business Day following receipt thereof by Duratek or the affected Subsidiary in accordance with Section 2.6(b). Duratek shall also prepay the Loans, with application thereto in accordance with Section 2.6(b), in respective amounts equal to the prepayment after-Tax amount of any refund, purchase price adjustment, claim or credit arising under any agreement governing or relating to any acquisition of any assets or business. Notwithstanding the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableforegoing, with respect to any Net Proceeds realized or received with respect to any Permitted Asset Sales (other than any Excluded Asset Sales), at the option of Duratek, and so long as no Default or Event of Default shall have occurred and be continuing, Duratek may reinvest all or any portion of such Net Proceeds in assets acquired by used or useful for its business within three hundred sixty-five (365) days following receipt of such Net Proceeds; provided, however, that (i) if the property subject to such asset sale constituted Collateral under the Security Documents, then any Group Member capital assets purchased with the Net Proceeds thereof pursuant to such Board-Approved Investment this subsection shall be mortgaged or Proceeds Investmentpledged, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicableAdministrative Agent, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment for the benefit of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrenceSecured Parties, and on such day the relevant (ii) if any Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior no longer intended to such 181st day to consummate (x) be so reinvested at any time after delivery of a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions notice of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateralreinvestment election, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b2.6(b). The application For the purposes of this Section 2.8(a), if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.
(b) In addition to the scheduled repayments provided for in Section 2.4 hereof, Duratek shall prepay the Loans in an amount equal to one hundred percent (100%) of the Net Proceeds received after the Original Agreement Date from any Indebtedness for Money Borrowed incurred by Duratek or any of its Subsidiaries, except for Indebtedness for Money Borrowed (i) permitted by Section 7.1 hereof or (ii) incurred in connection with any Permitted Investments or Permitted Acquisitions permitted under Section 7.6 hereof (including any Indebtedness assumed by EnergySolutions or its respective Subsidiaries in connection with any such Permitted Investment or Permitted Acquisition), to the extent that upon consummation of any such Permitted Investment or Permitted Acquisition such Net Proceeds were invested in, or used to acquire, such Permitted Investment or Permitted Acquisition. Such amount shall be applied on the third Business Day following receipt thereof by EnergySolutions, Parent or the affected Subsidiary in accordance with Section 2.6(b). For the purposes of this Section 2.8(b), if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.
(c) In addition to the scheduled repayments provided for in Section 2.4 hereof, for each fiscal quarter during the term hereof (commencing with the fiscal quarter ended September 30, 2006), on or prior to the fifth Business Day following delivery of the financial statements required by Sections 6.1 and 6.2 hereof for the most recently completed fiscal quarter, (x) so long as the Leverage Ratio as of the end of the most recently completed fiscal quarter is equal to or greater than 3.0 to 1.0, Duratek shall prepay the Loans in an amount equal to the difference between (i) fifty percent (50%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period, (y) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than 3.0 to 1.0 and greater than 1.0 to 1.0, Duratek shall prepay the Loans in an amount equal to the difference between (i) twenty-five percent (25%) of Excess Cash Flow for the most recently completed fiscal quarter and (ii) an amount equal to the optional prepayments made pursuant to Section 2.6 in such fiscal period and (z) if the Leverage Ratio as of the end of the most recently completed fiscal quarter is less than or equal to 1.0 to 1.0, Duratek shall not be required prepay the Loans. For the purposes of this Section 2.8(c), if EnergySolutions is a Subsidiary of Duratek, all references to Duratek and/or its Subsidiaries (i) shall include Parent and/or its Subsidiaries but (ii) shall not include EnergySolutions and/or its Subsidiaries.
(d) Any prepayment pursuant to this Section 2.5 2.8 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of made in the Loans under this manner set forth in Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid2.6(b).
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Required Lenders shall otherwise agree, if any Capital Stock shall be issued (other than any Capital Stock issued (i) solely for the purpose of applying the Net Cash Proceeds of such issuance to cure (A) the inaccuracy of any Curable Representation/Warranty in accordance with Section 7.1 (b) or (B) a violation of Section 6.1 or Section 6.3 in accordance with such Section and clause (f) below, or (ii) to one or more Investor Parties or Investor-Related Parties), or Indebtedness incurred, by the Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in accordance with Section 6.4), then on the date of such issuance or incurrence, the Loans shall be prepaid by an amount equal to 50% the amount of the Net Cash Proceeds of any such issuance or incurrence. The provisions of this Section do not constitute a consent to the issuance of Capital Stock any equity securities by any Loan Party shall be applied entity whose equity securities are pledged pursuant to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance Guarantee and Collateral Agreement, or a consent to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as incurrence of any Indebtedness by the Borrower shall have complied with the provisions or any of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesits Subsidiaries.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in agree, if on any date the immediately succeeding sentence with respect to the incurrence Borrower or any of Permitted Subordinated Indebtedness, an amount equal to 100% of the its Subsidiaries shall receive Net Cash Proceeds of from any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureAsset Sale or Purchase Price Refund then, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is shall be delivered to the Administrative Agent within three (3) Business Days after in respect thereof, on the day date of receipt by a Group Member the Borrower or such Subsidiary of the such Net Cash Proceeds of any Asset Sale or Recovery Event that results from Proceeds, the sale or other disposition of, or payment with respect to, any of the Collateral, Loans shall be prepaid by an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to Proceeds; provided, that, notwithstanding the Indebtedness under foregoing, (i) the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such aggregate Net Cash Proceeds by of Asset Sales and Purchase Price Refunds that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall not exceed $1,000,000 in any Group Member; provided that no prepayment fiscal year of the Borrower and (ii) on each Reinvestment Prepayment Date the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentenceprepaid, on each Reinvestment Prepayment Date, by an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentencePurchase Price Refund.
(dc) Unless the Required Lenders shall otherwise agree, commencing if on any date the Borrower or any of its Subsidiaries shall receive net Cash Proceeds from any Recovery Event then, unless the Borrower acts in accordance with the fiscal year following procedures specified in this Section 2.6(c), the Loans shall be prepaid by an amount equal to the amount of such Net Cash Proceeds promptly upon the Borrower’s failure to act, or to continue to act, in accordance with such procedures:
(i) within 90 days after the occurrence of the Borrower ending December 31event that gives rise to the Recovery Event, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied deliver to the prepayment Administrative Agent a preliminary notice of intent to use the anticipated Net Cash Proceeds from such Recovery Event to rebuild or reinvest in the assets that were the subject of the Loans Recovery Event;
(ii) upon receipt of such Net Cash Proceeds, the Borrower shall place them in a segregated account subject to a security interest in favor of the Administrative Agent for the benefit of the Lenders, to be used only for such rebuilding or reinvestment;
(iii) within 15 days after receipt of such Net Cash Proceeds, the Borrower shall deliver to the Administrative Agent a Reinvestment Notice in respect thereof;
(iv) within six months after delivery of the Reinvestment Notice, the Borrower shall commence the reinvestment or rebuilding process, provided that the Borrower has obtained all required Licenses to do so (which the Borrower shall make commercially reasonable efforts to obtain in a timely manner);
(v) if the Borrower has not obtained any required Licenses within the six-month period specified in clause (iv) above, then provided that the Borrower at all times is diligently proceeding to obtain all such required Licenses, the Borrower shall have such additional period of time as set forth is reasonably needed to obtain required Licenses and thereafter commence the reinvestment or rebuilding process, but in no event shall such additional period extend later than the date that is the earlier of (A) six months after the end of the initial six-month period specified in clause (iv) above or (B) the date on which the Administrative Agent in the exercise of reasonable discretion informs the Borrower that the Administrative Agent believes any such License is not reasonably capable of being obtained by the Borrower;
(vi) the Borrower shall diligently proceed with and complete the reinvestment or rebuilding process in accordance with the Reinvestment Notice; and
(vii) the Borrower shall provide notice to the Administrative Agent of any material correspondence relating to any required Licenses pursuant to Section 2.5(f5.7(h).
(d) on The provisions of Sections 2.6(b) and 2.6(c) do not constitute a consent to the Prepayment Application Dateconsummation of any Disposition not permitted by Section 6.7.
(e) Unless the Required Lenders shall otherwise agree, if, as of any ECF Calculation Date commencing with the fiscal year first ECF Calculation Date following the expiration of 180 days after the Substantial Consummation Date, there shall be Excess Cash Flow, then, on the relevant ECF Application Date, the Loans shall be prepaid by an amount equal to 50% of such Excess Cash Flow, provided that, notwithstanding the foregoing, in no event shall the Borrower be required to make a prepayment pursuant to this Section 2.6(e) relating to any ECF Calculation Period if (and to the extent that) such payment would cause the Borrower’s and its Subsidiaries’ (on an aggregate basis) Cash and Cash Equivalents to be less than $10,000,000 as of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application relevant ECF Calculation Date.
(f) Amounts Unless the Required Lenders shall otherwise agree, if on any date the Administrative Agent shall determine (absent manifest error) pursuant to Section 6.1 or Section 6.3 (as the case may be) that the amount of capital contributions to the Borrower made to cure a violation of Section 6.1 or Section 6.3 (as applicable) exceeds the amount needed to cure such violation, then the Loans shall be prepaid in an amount equal to the lesser of (i) the entirety of such excess amount of capital contributions and (ii) $500,000.
(g) All prepayments of the Loans pursuant to Sections 2.5 and 2.6 shall be applied as follows: (i) first, to pay accrued and unpaid interest on, and expenses in connection with prepayments made pursuant respect of, the Obligations to this Section 2.5 the extent then due and payable, and (ii) second, to prepay the principal amount of the Loans and other Obligations (if any) then outstanding (and shall be applied to the prepayment installments of such Loans in the inverse order of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date scheduled maturities of such prepayment on the amount prepaidinstallments).
Appears in 1 contract
Samples: Credit Agreement (NGA Holdco, LLC)
Mandatory Prepayments. (i) (x) If any Prepayment Event under any of clauses (a) Unless through (d) of the Required Lenders otherwise agreedefined term “Prepayment Event” occurs, then, to the extent of any remaining Net Proceeds received by the Loan Parties on account thereof after application of such proceeds to outstanding ABL Obligations in accordance with the ABL Loan Agreement, or (y) if any Prepayment Event under clause (e) of the defined term “Prepayment Event” occurs, then the Borrowers shall, within five (5) Business Days (or immediately in the case of any incurrence of any Indebtedness that is not Permitted Indebtedness) after receipt of suchthe Net Proceeds of each such Prepayment Event, prepay the Term Loans in an amount equal to 50% of such remaining Net Proceeds (or remaining Net Proceeds, as applicable), together with any applicable Prepayment Premium in the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to amount specified in the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureAgent Fee Letter; provided, (w) a Restricted Paymenthowever, that (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, notwithstanding anything to the extent applicablecontrary in the Agent Fee Letter, no Prepayment Premium shall become due and payable in connection with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as Prepayment Event under clause (e) of the case may be)defined term “Prepayment Event”, (y) a Permitted Acquisition no prepayment shall be required in connection with any Prepayment Event under clause (e) of the defined term “Prepayment Event” if such prepayment would not then be permitted pursuant to Section 8(y) of the ABL Loan Agreement (as in effect on the Fifth Amendment Effective Date) and (z) the Borrowers shall be permitted to replace, repair, restore or rebuild Collateral that is subject to any casualty or other insured damage or any taking under power of eminent domain or by condemnation or similar proceeding of (and payments in lieu thereof), so long as (i) no Default or Event of Default has occurred and is continuing and (ii) any such Net Proceeds on account of such Prepayment Event not used to replace, repair, restore or rebuild such Collateral within 180 days after the Borrower shall have complied with the provisions receipt of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Term Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 2.6(b)(i) and Section 2.6(c).
(ii) If all Commitments under (and as defined in) the ABL Loan Agreement are terminated prior to the Scheduled Maturity Date under (and as defined in) the ABL Loan Agreement, the Borrowers shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment immediately prepay all of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidLoans.
Appears in 1 contract
Samples: Loan and Security Agreement (Rubicon Technologies, Inc.)
Mandatory Prepayments. (ai) Unless Upon the Required Lenders otherwise agreesale of any Financed Eligible Asset or other asset by any Borrower (including the sale or disposition of the equity interests in any such Borrower that holds a Financed Eligible Asset (including a transfer to any Securitization Subsidiary) but excluding any transfer of an Eligible Asset to a direct or indirect Subsidiary of Bermuda Holding 2 Ltd., AI 1 Ltd. or AI 3 Ltd. who, in connection with such transfer will assume all of the transferor's obligations and shall satisfy all requirements under Section 5.2 to become a Borrower hereunder), or upon the refinancing of any Indebtedness of any Borrower arising from any Loan hereunder, the Borrowers, jointly and severally, shall immediately pay to the Agent an amount equal to 50% the greater of (A) the Net Cash Proceeds outstanding principal of and accrued interest on any issuance Loans made to, or for the benefit of, such Borrower in connection with such Financed Eligible Asset and (B) an amount sufficient to bring the Borrowers into compliance with the Borrowing Base Covenant after giving effect to such sale, disposition or refinancing. If any net proceeds of Capital Stock by any Loan Party such sale or refinancing remain after the repayment in full of all outstanding principal and accrued interest on the Loans attributable to the Financed Eligible Asset sold, such excess proceeds shall be applied first, to reduce the prepayment of the outstanding principal and accrued interest on Loans as set forth directed by Bermuda Holding 2 Ltd., AI 1 Ltd. or AI 3 Ltd. until the Borrowers are in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied compliance with the provisions Borrowing Base Covenant and second, if no Default or Event of Section 5.9Default exists at the time, to the extent applicable, with respect Applicable Borrower to any assets acquired be used or distributed by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Applicable Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesits sole discretion.
(bii) Unless the Required Lenders shall otherwise agree and except If as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to Calculation Date the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An aggregate principal amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until greater than 65% of the amount of Net Cash Proceeds to be applied to make Borrowing Base on such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to day, the immediately preceding sentenceBorrowers shall, on each Reinvestment Prepayment the Payment Date immediately following such Calculation Date, prepay the Loans in an amount equal to the Reinvestment Prepayment Amount with respect amount necessary to cause the relevant Reinvestment Event shall be applied to the prepayment aggregate outstanding principal amount of the Loans as set forth to be not greater than 65% of the Borrowing Base on such Payment Day.
(iii) If the estimated amount of out of pocket costs incurred by an Applicable Borrower in Section 2.5(f). Notwithstanding connection with the delivery acquisition of a Reinvestment Notice pursuant to this paragraphFinanced Eligible Asset exceeds the actual amount of such out of pocket costs included in the Purchase Price of such Financed Eligible Asset, the aggregate Net Cash Proceeds Borrowers shall prepay the Loan relating to such Financed Eligible Asset in an amount equal to 65% of Asset Sales such excess out of pocket costs within five Business Days after a Responsible Officer learns of such excess.
(iv) The Borrowers, jointly and Recovery Events that may be excluded from the requirement to severally, shall prepay the Loans contained in this paragraph pursuant to respect of a Reinvestment Notice shall not exceed (x) with Financed Eligible Asset upon the occurrence of an Event of Loss in respect to any single of such Finance Eligible Asset Sale or Recovery Event, $30,000,000 and (y) in on the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (idate required by Section 3.8(b) of the definition thereof Security Agreement. If any net proceeds received in respect of such Event of Loss remain after the repayment in full of all outstanding principal and accrued interest on such Loans, if no Default or Event of Default exists at the time, such excess proceeds shall be excluded in determining the aggregate Net Cash Proceeds subject paid to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Applicable Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the and may be used by such Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application the terms of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of Agreement and the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidother Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Aircastle LTD)
Mandatory Prepayments. (a) Unless In connection with any issuance of debt or equity securities, or incurrence of debt for borrowed money (except for any such debt having a tenor of no longer than 120 days), by the Required Lenders otherwise agreeCompany or any of its Subsidiaries generating Net Proceeds therefrom in excess of $10,000,000 (the “Threshold Amount”), the Company shall prepay the Loans in an amount equal to 50% of such Net Proceeds within 30 days after receipt thereof. Notwithstanding the foregoing in this Section 2.06(a) to the contrary, (i) no such prepayment shall be required with respect to the Net Cash Proceeds received by the Company or any of its Subsidiaries from the issuance by the Company or any of its Subsidiaries of tax exempt bonds; and (ii) all Net Proceeds from any sale or issuance of Capital Stock debt or equity securities, or incurrence of debt for borrowed money by the Company or any Loan Party of its Table of Contents subsidiaries consummated in connection with the Recapitalization Transaction shall be applied used to prepay the Loans without regard to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make Threshold Amount (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case it being understood that so long as the Borrower shall have complied Net Proceeds from the issuance and sale of senior subordinated notes by the Company in connection with the provisions of Section 5.9Recapitalization Transaction are held in escrow, such proceeds do not have to be used to prepay the extent applicableLoans hereunder, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on upon the release of such 121st day a Board-Approved Investment or Net Proceeds Investmentfrom such escrow, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after all such incurrence, and on such day the relevant Net Cash Proceeds shall be applied used to prepay the Loans without regard to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved InvestmentThreshold Amount), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless In connection with any Asset Sale by the Required Lenders Company or any of its Restricted Subsidiaries generating Net Proceeds in excess of $50,000,000 (each, an “Asset Disposition”), the Company shall otherwise agree and except as set forth prepay the Loans in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) such Asset Disposition within 30 days after receipt thereof; provided, however, no such prepayment shall be applied to the prepayment of the Loans as set forth required in Section 2.5(fconnection with an Asset Disposition that constitutes a Sale-Leaseback Transaction not requiring compliance with Sections 8.02(b) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be8.02(c), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the Any prepayment of the Loans as set forth in required by this Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice 2.06 shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) minimum amount requirements of this sentenceSection 2.05(b).
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of Upon any prepayment pursuant to this Section 2.5 2.06, the Administrative Agent shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of promptly notify the Loans under this Section 2.5 shall be accompanied by accrued interest to the date Lenders of such prepayment on the amount prepaidprepayment.
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in In accordance with Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure2.01(f)(iii), (wA) during a Restricted PaymentSweep Event, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with apply Actual Net Cash Flow remaining after making the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member transfers required pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (ySections 3.3(d)(i) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (ithrough 3.3(d)(vi) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied CADA to the prepayment of the Loans in accordance with Section 2.11(b). The application 3.3(d)(vii) of the CADA until such time the Sweep Event is remedied, provided that in the event that a Sweep Event is caused by the occurrence of a Bankruptcy Event of SolarCity, such Sweep Event cannot be remedied and such Sweep Event shall continue until the Discharge Date; (B) if any Loan Party or any Subject Fund (x) incurs or issues any Debt after the Closing Date that is not permitted to be incurred pursuant to Section 7.02 or (y) issues any capital stock, then, in each case, the Borrower shall prepay the Loans, in an aggregate principal amount equal to 100% of all net cash proceeds therefrom received or entitled to be received by, or distributable to, any Loan Party or any Affiliate thereof, to, on or prior to the date which is two (2) Business Days after the receipt by the applicable Loan Party of such net proceeds; (C) if, as of any prepayment date a Borrowing Base Certificate is delivered (including any Borrowing Base Certificate delivered pursuant to this Section 2.5 shall be made2.12), firstthe Outstanding Principal exceeds the Available Borrowing Base, to ABR Loans andBorrower shall, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to within five (5) Business Days after the date of such Borrowing Base Certificate, prepay the Loans in an amount sufficient to reduce the Outstanding Principal to an amount not greater than the Available Borrowing Base as calculated in such Borrowing Base Certificate; (D) upon receipt of any Equity Contributions under Article XI, the Borrower shall cause the proceeds of such Equity Contribution to be applied as a prepayment on of outstanding principal of the Loans in an amount equal to the amount prepaidof such Equity Contribution; (E) upon any refinancing of Net Cash Flows of one or more Subject Funds in accordance with Section 2.10(a), the Borrower shall prepay the Loans in an amount equal to the net cash proceeds of such refinancing; and (F) if any Subject Fund becomes subject to a Trigger Event, then within five (5) Business Days after the Borrower receives notice from the Administrative Agent or otherwise has actual knowledge of such Trigger Event, the Borrower shall prepay the Loans in an amount sufficient to cause such Subject Fund to become a Released Fund pursuant to Sections 2.10(b) and (c).
Appears in 1 contract
Samples: Credit Agreement (Solarcity Corp)
Mandatory Prepayments. One hundred eighty (180) days after a Group Member’s receipt of proceeds of an asset Disposition pursuant to Section 7.5(c) (with respect to such Asset Disposition, such 180th day being herein called the “prepayment determination date”), or if such day is not a Business Day, the next succeeding Business Day, the Total Revolving Commitments shall automatically be reduced by the amount of (and the Borrower shall immediately prepay the Revolving Loans in an amount equal to):
(a) Unless If such prepayment determination date occurs prior to the Required Lenders otherwise agreedate the Parent has an Investment Grade Rating, an amount equal to 50% the excess of (i) Net Book Value of such asset plus the Net Cash Proceeds Book Value of any issuance all other assets Disposed of Capital Stock by any Loan Party shall be applied pursuant to the prepayment of the Loans as set forth in Section 2.5(f7.5(c) on the 121st day after the date of this Agreement that has not been so applied to reduce the Total Revolving Commitments (and to prepay the Revolving Loans), less, for each such issuance asset Disposition, the amount of the proceeds of such Disposition (up to such Net Book Value) that has been applied to the extent purchase or development of capital assets used in any line of business permitted by Section 7.15 within 180 days after the date of receipt of the proceeds of such Disposition, over (ii) 5% of the sum of (A) the Net Cash Proceeds are not used Book Value of total consolidated assets of the Borrower and its Subsidiaries immediately prior to such 121st day to make Disposition plus (vB) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions Net Book Value of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member that have previously been Disposed of pursuant to such Board-Approved Investment or Proceeds Investment, as Section 7.5(c) after the case may be), (y) a Permitted Acquisition (so long as the Borrower shall date of this Agreement that have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment purchase or development of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.capital assets; or
(b) Unless If such prepayment determination date occurs on or after the Required Lenders shall otherwise agree and except as set forth in date the immediately succeeding sentence with respect to Parent has an Investment Grade Rating, the incurrence greater of Permitted Subordinated Indebtedness, an amount equal to 100% :
(i) the excess of (A) the Net Cash Proceeds Book Value of any incurrence such asset plus the Net Book Value of Indebtedness all other assets Disposed of any Loan Party (excluding any Indebtedness permitted pursuant to be incurred under Section 6.27.5(c) shall be applied to during the prepayment period of the Loans as set forth in Section 2.5(f) 365 days ending on the date of such incurrence. An asset Disposition that has not been so applied to reduce the Total Revolving Commitments (and to prepay the Revolving Loans), less, for each such asset Disposition, the amount equal of the proceeds of such Disposition (up to 100such Net Book Value) that has been applied to the purchase or development of capital assets used in any line of business permitted by Section 7.15 within 180 days after the date of receipt of the proceeds of such Disposition over (B) 10% of the Net Cash Proceeds Book Value of total consolidated assets of the Borrower and its Subsidiaries immediately prior to such Disposition plus the Net Book Value of any incurrence assets that have been Disposed of Permitted Subordinated Indebtedness of any Loan Party shall be pursuant to Section 7.5(c) during such 365 day period that have not been applied to the prepayment purchase or development of capital assets; or
(ii) the Loans as set forth in excess of (A) the Net Book Value of such asset plus the Net Book Value of all other assets Disposed of pursuant to Section 2.5(f) on the 121st day (the “Payment Date”7.5(c) after the date of this Agreement that has not been so applied to reduce the Total Revolving Commitments (and to prepay the Revolving Loans), less, for each such incurrence asset Disposition, the amount of the proceeds of such Disposition (as up to such date may be extended pursuant Net Book Value) that has been applied to the proviso set forth at purchase or development of capital assets used in any line of business permitted by Section 7.15 within 180 days after the end date of this sentencereceipt of the proceeds of such Disposition over (B) to 25% of the extent such sum of the Net Cash Proceeds are not used Book Value of total consolidated assets of the Borrower and its Subsidiaries immediately prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as Disposition plus the Borrower shall have complied with the provisions Net Book Value of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member that have previously been Disposed of pursuant to such Board-Approved Investment or Proceeds Investment, as Section 7.5(c) after the case may be), (y) a Permitted Acquisition (so long as the Borrower shall date of this Agreement that have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment purchase or development of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasescapital assets.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with All prepayments made pursuant to this Section 2.5 shall 3.2 will be applied first to the prepayment of the Base Rate Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, and second to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Credit Agreement (Chesapeake Midstream Partners Lp)
Mandatory Prepayments. (a) Within ten (10) Business Days after the consummation of any sale or other disposition of Property (including the sale or other disposition of Receivables) by the Borrower or any Restricted Subsidiary if the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for all other such sales or other dispositions consummated during the period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, exceeds $25,000,000, the Borrower shall deliver an Officer’s Certificate to the Administrative Agent and the Lenders (notifying the Administrative Agent and the Lenders thereof and certifying the amount of Net Cash Proceeds received from such sales or other dispositions during such period). Unless within five (5) Business Days after receipt of such Officer’s Certificate the Administrative Agent, on behalf of the Required Lenders, shall have notified the Borrower of the Required Lenders’ election to forego prepayment, then on the date that is seven (7) Business Days after the date on which the Borrower shall have delivered such Officer’s Certificate to the Administrative Agent and the Lenders otherwise agree, the Borrower shall make a prepayment of the Loans in an amount equal to 50the Ratable Share of the amount of Net Cash Proceeds certified in such Officer’s Certificate (or such lesser principal amount as shall then be outstanding), at 100% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to principal amount so prepaid. Notwithstanding the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureforegoing, (wi) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal up to 100% of the Net Cash Proceeds of such sales or other dispositions with respect to which the Borrower shall have given the Administrative Agent written notice (set forth in the applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (a)) of its intention to repair or replace the Property subject to any incurrence such sale or other disposition or invest such Net Cash Proceeds in the purchase of Indebtedness Property (other than securities, unless those securities represent equity interests in an entity that becomes a Guarantor or an Unrestricted Subsidiary permitted hereunder (and provided that if such Guarantor or Unrestricted Subsidiary is a newly LEGAL02/36800330v21 formed Person, such Person shall promptly use the portion of any Loan Party (excluding any Indebtedness permitted the Net Cash Proceeds received by it for the sale of its equity interests in order to purchase Property to be incurred under Section 6.2used by it in its business)) to be used by one or more of the Borrower or the Guarantors in their businesses (such repair, replacement or investment referred to as a “Reinvestment”) within six (6) months following such sale or other disposition, shall not be subject to the provisions of the first two sentences of this clause (a) unless and to the extent that such applicable period shall have expired without such repair, replacement or investment having been made, and (ii) only the Net Cash Proceeds from sales or other dispositions of Property (including the sale or other disposition of Receivables) with a fair market value of the consideration received therefor in excess of $25,000,000 (above and beyond the fair market value of the consideration of the dispositions of the Property with respect to which the Net Cash Proceeds shall have been subject to Reinvestment) shall be applied subject to the provisions of the first two sentences of this clause (a).
(b) Any prepayments made by the Borrower pursuant to Section 2.12(a) above shall be applied by the Administrative Agent as follows: first to repay Term Loans on a pro rata basis as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and Term Loan A-3 and, unless otherwise provided in the Incremental Facility Amendment applicable to the related Incremental Term Loan, each Incremental Term Loan (with the application of such prepayment to be, as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and Term Loan A-3, and Incremental Term Loan, to the remaining scheduled principal installments owing in respect of each such Term Loan under Section 2.9(d), (e), (f) and (g), respectively (or, in the case of Incremental Term Loans, as set forth in the Incremental Facility Amendment applicable to the related Incremental Term Loan), on a pro rata basis (including the final installment due and payable on each such Term Loan)), second, to repay outstanding Swingline Loans and third, to repay outstanding Revolving Loans. All prepayments in respect of Revolving Loans required under this clause (b) shall be accompanied by a concurrent, automatic, irrevocable reduction and partial termination of the Revolving Commitments in an amount equal to such required prepayment, with such reduction and partial termination allocated ratably among the Lenders in proportion to their respective Pro Rata Share.
(c) If at any time the Revolving Credit Exposure of all Revolving Lenders exceeds the Aggregate Revolving Commitment then in effect, the Borrower shall immediately repay Swingline Loans and Revolving Loans in an amount equal to such excess (with Swingline Loans being repaid first to the full extent thereof and next to Revolving Loans to the full extent thereof), in each case, together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment of Revolving Loans shall be applied first to the Revolving Base Rate Loans to the full extent thereof, and next to Revolving Eurodollar Loans to the full extent thereof. If such excess is greater than the outstanding principal amount of the Swingline Loans and Revolving Loans (such greater amount, the “Remaining Excess Amount”), the Borrower shall Cash Collateralize its Reimbursement Obligations by depositing Cash Collateral in an amount equal to the Remaining Excess Amount plus any accrued and unpaid fees thereon into a special collateral account pursuant to arrangements satisfactory to the Administrative Agent (the “LC Collateral Account”) at the Payment Office, in the name of the Borrower but under the sole dominion and control of the Administrative Agent, for the benefit of the Lenders and in which the Borrower shall have no interest other than as set forth in Section 2.5(f) 8.2. The Borrower hereby pledges, assigns and grants to the Administrative Agent, on behalf of and for the date of such incurrence. An amount equal to 100% ratable benefit of the Net Cash Proceeds Lenders and the LEGAL02/36800330v21 Issuing Bank, a Lien in all of the Borrower’s right, title and interest in and to all funds which may from time to time be on deposit in the LC Collateral Account to secure the prompt and complete payment and performance of the Obligations. The Administrative Agent will invest any incurrence funds on deposit from time to time in the LC Collateral Account in certificates of Permitted Subordinated Indebtedness deposit of any Loan Party SunTrust Bank having a maturity not exceeding thirty (30) days. The LC Collateral Account shall be applied to the prepayment of the Loans as set forth administered in accordance with Section 2.5(f2.22(g) on the 121st day (the “Payment Date”) hereof. If, after the date of such incurrence (as such date may be extended that the Borrower Cash Collateralizes its Reimbursement Obligations pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make clause (v) a Capital Expenditure, (w) a Restricted Paymentc), (x) the Revolving Credit Exposure of all Lenders is less than Aggregate Revolving Commitment, for a Board-Approved Investment period of at least ten (10) consecutive Business Days, and (y) no Default or a Proceeds Investment Event of Default then exists, the funds in the LC Collateral Account shall be released by the Administrative Agent to the Borrower.
(d) If at any time the Revolving Credit Exposure of all Revolving Lenders plus the aggregate principal amount in either case so long as respect of the Term Loans then outstanding exceeds the Borrowing Base (without giving effect to clause (ii)(y) thereof) then in effect, the Borrower shall have complied with immediately repay the provisions of Section 5.9Loans (and, to the extent applicable, with respect to any assets acquired by any Group Member pursuant Cash Collateralize its Reimbursement Obligations) in an amount equal to such Board-Approved Investment or Proceeds Investmentexcess (or, as if such excess exceeds $10,000,000, the Ratable Share of such excess), together with all accrued and unpaid interest on such excess amount and any amounts due under Section 2.20. Each prepayment made under this clause (d) within a Class of Loans shall be applied first to the Base Rate Loans of such Class to the full extent thereof, and next to Eurodollar Loans of such Class to the full extent thereof. Each prepayment required to be made under this clause (d) shall be applied ratably between the Revolving Facility (based on the Revolving Credit Exposure at such time) and the Term Loans then outstanding. In the case may be)of prepayments and Cash Collateralization required under this clause (d) in respect of the Revolving Facility, (y) a Permitted Acquisition (so long as such payments shall be applied by the Borrower shall have complied with the provisions of Section 5.9Administrative Agent first, to the extent applicableprincipal amount of outstanding Swingline Loans, second to the principal amount of outstanding Revolving Loans and third, with respect to any assets acquired Letters of Credit then outstanding, to Cash Collateralize the Borrower’s Reimbursement Obligations by any Group Member pursuant depositing Cash Collateral in an LC Collateral Account in the manner and for the purposes described in clause (c) above. Prepayments required under this clause (d) in respect of the Term Loans shall be applied by the Administrative Agent to repay Term Loans on a pro rata basis as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and Term Loan A-3 and, unless otherwise provided in the Incremental Facility Amendment applicable to the related Incremental Term Loan, each Incremental Term Loan (with the application of such Permitted Acquisitionprepayment to be, as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and Term Loan A-3 and Incremental Term Loan, to the remaining scheduled principal installments owing in respect of each such Term Loan under Section 2.9(d), (ze), (f) Permitted Open Market Purchases or and (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investmentg), a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto respectively (or, with respect to Permitted Open Market Purchasesin the case of Incremental Term Loans, shall have made a binding offer, subject as set forth in the Incremental Facility Amendment applicable to the conditions set forth thereinrelated Incremental Term Loan), then on a pro rata basis (including the Payment Date final installment due and payable on each such Term Loan)). Any prepayment in respect of Revolving Loans required under this clause (d) shall not be extended required to the 181st day after such incurrencebe accompanied by, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment not otherwise result in, a concurrent reduction or partial termination of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Revolving Commitments in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceprepayment.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (ai) Unless Following satisfaction of any required prepayment provisions in respect thereof under the Required Lenders otherwise agreeSenior Secured Obligations, and subject to Section 2.04(b)(i)(B), if (x) the Borrower or any Subsidiary Disposes of any property, or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by the Borrower or such Subsidiary of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% (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 2.04(b)(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 2.04(b)(i)(A) (which notice may only be provided if no Event of Default has occurred and is then continuing).
(A) With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event, at the option of the Borrower, the Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful for its business within twelve (12) months following receipt of such Net Cash Proceeds; provided that (i) so long as an Event of Default shall have occurred and be continuing, the Borrower shall not be permitted to make any such reinvestments (other than pursuant to a legally binding commitment that the Borrower entered into at a time when no Event of Default is continuing) and (ii) if any Net Cash Proceeds are not so reinvested by the deadline specified above or if any such Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election, an amount equal to 50% the Asset Percentage of the any such Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in this Section 2.5(f2.04.
(B) on On each occasion that the 121st day Borrower must make a prepayment of the Loans pursuant to this Section 2.04(b)(i), the Borrower shall, as promptly as reasonably practicable, but in any event within five Business Days after the date of realization or receipt of such issuance Net Cash Proceeds (or, in the case of prepayments required pursuant to Section 2.04(b)(i)(A), as promptly as reasonably practicable, but in any event within five (5) Business Days after the extent deadline specified therein, or of the date the Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case be so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investmentreinvested, as the case may be), (y) make a Permitted Acquisition (so long as prepayment, of the Borrower shall have complied with the provisions principal amount of Section 5.9, Loans in an amount equal to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment Asset Percentage of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate realized or received.
(xii) Upon the occurrence of a Board-Approved Investment or Proceeds Investment (in either case so long as Change of Control, the Borrower shall have complied with offer to prepay the provisions aggregate outstanding amount of Section 5.9the Loans at such time in cash, to the extent applicable, with respect to without any assets acquired by any Group Member pursuant to such Board-Approved Investment), premium or penalty (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except other than as set forth in Section 2.04(b)(iii)).
(iii) In the immediately succeeding sentence with event that the Borrower prepays any outstanding Loans pursuant to Section 2.04(a) or (b) or in respect of any repayment of the Loans following an acceleration of the Loans pursuant to Section 9.02, (A) the Borrower shall pay the Make Whole Premium plus accrued and unpaid interest, if any, if such prepayment occurs on or prior to the incurrence second anniversary of Permitted Subordinated Indebtednessthe Closing Date, (B) the Borrower shall pay a premium equal to 4.0% of the aggregate principal amount of the Facility so prepaid if such prepayment occurs after the second anniversary of the Closing Date and on or prior to the third anniversary of the Closing Date and (C) the Borrower shall pay a premium equal to 2.0% of the aggregate principal amount of the Facility so prepaid if such prepayment occurs after the third anniversary of the Closing Date and on or prior to the fourth anniversary of the Closing Date.
(iv) [INTENTIONALLY OMITTED.]
(v) In the event that the Merger does not occur prior to or on the date that is 90 days after the Closing Date, the Borrower shall cause, within three Business Days after such date, to be prepaid, without premium or penalty, an aggregate principal amount of the outstanding Loans equal to 100% of the Net Cash Escrow Proceeds. For the avoidance of doubt, interest shall accrue on the Escrow Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on until the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party prepayment or repayment, and shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if due and payable on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesdate.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (a) Unless the Required Lenders otherwise agreeThe Borrower shall, an amount equal to 50% within five (5) Business Days of the receipt of any Net Cash Proceeds by Holdings or its Subsidiaries in connection with (i) Dispositions (other than Dispositions permitted by clauses (b) through (h) and (j) of any issuance of Capital Stock by any Loan Party shall be applied to the Section 6.5) or (ii) Recovery Events, make a mandatory prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus Proceeds; provided that (A) at the amount option of the Borrower (as elected by the Borrower in writing to the Administrative Agent by delivery of a Reinvestment Notice) such proceeds may be retained by the Borrower (and be excluded from the prepayment requirements of this clause) if the Borrower informs the Administrative Agent in such notice of its good faith intention to reinvest or commit to reinvest all or any portion of such Net Cash Proceeds applied in assets used or useful in the business of Holdings or any of its Subsidiaries (and, to the Indebtedness under extent the Exit Facility Agreement assets subject to such Disposition or Recovery Event constituted Collateral, in assets that will constitute Collateral) within 365 days after the receipt of such proceeds (and, if the Borrower has committed to reinvest within such 365 day period, the Borrower reinvests within 90 days following such 365 day period), (B) at the option of the Borrower as notified in writing by a Responsible Officer to the Administrative Agent that the Borrower (directly or indirectly through a Subsidiary including the SPV Purchaser) intends and expects to use all or a portion of the Net Cash Proceeds of a Disposition or Recovery Event in connection with a Deleveraging Event, such proceeds may be retained by the Borrower (and be excluded from the prepayment requirements of this clause) if the Borrower informs the Administrative Agent in such notice of its good faith intention to use such Net Cash Proceeds in connection with a Deleveraging Event within 455 days after the receipt of such proceeds (it being understood that to the extent the Borrower intends to use such proceeds to fund a Discounted Purchase, it must use such proceeds to fund a Discounted Purchase prior to the Discounted Purchase Option Date); provided further, it being understood and agreed that to the extent the Borrower has so notified the Administrative Agent in writing that it intends to use Net Cash Proceeds of a Disposition or Recovery Event to reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of Holdings or any of its Subsidiaries or for a Deleveraging Event in accordance with this clause (B), then notwithstanding an indication in any such notice to use such proceeds for reinvestment or a Deleveraging Event, the Borrower may use such Net Cash Proceeds for either reinvestment or a Deleveraging Event (subject to the limitation that a proceeds shall be applied used to fund a Discounted Purchase prior to the prepayment Discounted Purchase Option Date); provided further that to the extent that the Borrower shall not have so used such Net Cash Proceeds to fund a Deleveraging Event or to reinvest in accordance with clause (A) above or this clause (B), such Net Cash Proceeds shall otherwise be applied in accordance with the terms of the Loans as set forth in this Section 2.5(f2.5(a), and (C) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds need not be applied to such prepayment until the aggregate amount thereof from all transactions covered by this Section 2.5(a) not applied in accordance with the immediately preceding clauses (A) and (B) exceeds $1,000,000 in the aggregate, and any Group Member; provided that no prepayment of the Loans amount reinvested or used to fund Deleveraging Events hereunder shall not be required to be made pursuant to this subsection until included in determining the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each required prepayment of the Loans under this Section 2.5(a). Notwithstanding anything to the contrary contained herein or elsewhere in this Agreement, it is agreed that with respect to the 50% of the Net Cash Proceeds received by Holdings and its Subsidiaries after the Second Amendment Effective Date and prior to the Discounted Purchase Option Date in connection with the Disposition of any Scheduled Unencumbered Asset, (the “Restricted Proceeds”), (1) prior to the Discounted Purchase Option Date the Borrower may only utilize such Restricted Proceeds to fund Discounted Purchases, and (2) from and after the Discounted Purchase Option Date, the Borrower and its Subsidiaries may only utilize such Restricted Proceeds in accordance with the terms of Section 5.19; provided that the receipt of scheduled principal payments on any receivables included in the Scheduled Unencumbered Assets will not constitute Net Cash Proceeds or Restricted Proceeds.
(b) The Borrower shall, within five (5) Business Days following the receipt by Holdings or its Subsidiaries of any Net Cash Proceeds in connection with (i) any Incurrence of Indebtedness of Holdings or its Subsidiaries that is not permitted Indebtedness pursuant to Section 6.2 or (ii) any Incurrence of Indebtedness for borrowed money that is secured, directly or indirectly, by Unencumbered Real Property (including the Equity Interests of any Group Member that owns any Unencumbered Real Property), make a mandatory prepayment of the Loans in an amount equal to 100% of such Net Cash Proceeds.
(c) The Borrower shall, within five (5) Business Days following the receipt by Holdings or its Subsidiaries of any Net Equity Proceeds (other than Net Equity Proceeds received in connection with a Qualifying IPO if the Borrower elects to consummate the Conversion Option with respect to any of the TLC, the application of which shall be governed by Section 2.5(d)), make a mandatory prepayment of the Loans in an amount equal to 50% of such Net Equity Proceeds.
(d) If at any time during the eighteen-month period following the Effective Date (the “Option Period”) the Borrower consummates a Qualifying IPO, the Borrower shall with respect to the TLC of any TLC Lender, at the election of such TLC Lender or the Borrower, on the date of the consummation of such Qualifying IPO, consummate the Conversion Option with respect to the TLC of such TLC Lender and on the date of receipt of the Net Equity Proceeds of such Qualifying IPO, make a mandatory prepayment of the remaining Loans (other than Loans cancelled pursuant to this clause (d)) in an amount necessary to repay all outstanding Loans after giving effect to the consummation of the Conversion Option. All TLB and TLC held by the Company or any Affiliate or Subsidiary of the Company, including SPV Purchaser, shall immediately and automatically without further action, be deemed cancelled and satisfied and cease to be outstanding for any purpose upon consummation of a Qualifying IPO in connection with which the Conversion Option has been exercised with respect to any or all of the TLC.
(e) The Borrower shall give prior written notice of any mandatory prepayment required under this Section 2.5 (including the date and an estimate of the aggregate amount of such mandatory prepayment) at least three (3) Business Days prior thereto; provided that the failure to give such notice shall not relieve the Borrower of its obligation to make such mandatory prepayments on or prior to the dates set forth in this Section 2.5 and the Borrower shall be permitted to make such mandatory prepayments on or prior to such dates.
(i) Each prepayment of the Loans made by the Borrower pursuant to Section 2.5 shall be accompanied by accrued interest applied pro rata to the date outstanding principal amount of the Loans irrespective of whether such outstanding Loans are ABR Loans or Eurodollar Loans; provided that, subject to the terms in the immediately succeeding clause (ii), (A) each Lender entitled to receive any mandatory prepayment of its Loans under this clause (i) (other than a mandatory prepayment pursuant to Section 2.5(d), and except as provided in clause (iii) below as to the SPV Purchaser) may waive its right to receive any such prepayment, and the aggregate amount of such prepayments so waived shall be offered to the Lenders that did not waive their rights to such prepayments for application in accordance with this clause (i) and (B) if no Lender waives its right to receive any such prepayment, the amount of such prepayment shall be applied first to ABR Loans to the full extent thereof before application to the Eurodollar Loans in a manner that minimizes the amount of any payments required to be made by the Borrower pursuant to Section 2.14; provided, further, that, to the extent any portion of such aggregate amount remains unapplied after such offer, the Borrower shall be permitted to retain such amounts.
(ii) So long as the Administrative Agent has received prior written notice from the Borrower of a mandatory prepayment that may be waived by the Lenders pursuant to the immediately preceding clause (i), the Administrative Agent shall provide notice of such mandatory prepayment to the Lenders. Unless the Administrative Agent shall otherwise so provide, in the event a Lender does not notify the Administrative Agent in writing of its waiver of the right to receive;
(A) its pro rata share of such mandatory prepayment; and
(B) its pro rata share (such pro rata share to be based on the percentage obtained by dividing the principal amount prepaidof Loans held immediately prior to such mandatory prepayment by such Lender by the aggregate principal amount of Loans held immediately prior to such mandatory prepayments by the Lenders that do not waive their right to receive a portion of the mandatory prepayment described in this clause (B)) of any portion (if any) of such mandatory prepayment that may be waived by Lenders.
(iii) Notwithstanding anything contained in this Section 2.5 to the contrary, the SPV Purchaser has irrevocably waived, and hereby does irrevocably waive, the right to receive its pro rata share of any mandatory prepayments of principal by the Borrower. within two (2) Business Days of the providing of such notice by the Administrative Agent, the Administrative Agent may assume that such Lender will receive its applicable pro rata share of such mandatory prepayment and such portion (if any) of such mandatory prepayment that has actually been waived by the Lenders. It is understood and agreed by Holdings and the Borrower that, notwithstanding receipt by the Administrative Agent of any such mandatory prepayment, the Loans shall not be deemed repaid, unless otherwise consented to by the Administrative Agent, until three Business Days have elapsed from the delivery to the Administrative Agent of the notice described in Section 2.5(d).
(g) In the event the Borrower is required to prepay any Loans as a result of Holdings receiving Net Equity Proceeds (including proceeds of a Qualifying IPO) or Net Cash Proceeds, Holdings shall cause such proceeds to be made available to the Borrower to the extent necessary for the Borrower to satisfy its Obligations hereunder.
Appears in 1 contract
Mandatory Prepayments. (a) Unless The U.S. Borrowers shall be jointly and severally required to prepay Loans made to them, the Required Lenders otherwise agreeCanadian Borrower shall be required to prepay Loans made to it, and the Specified Loan Borrower shall be required to prepay Loans made to it, not later than the third Business Day following the receipt of Net Proceeds from Asset Dispositions by (x) the applicable Borrower or any of its Subsidiaries or (y) in the case of the U.S. Borrowers, Holdings or any of its Subsidiaries, in an amount equal to 50the lesser of (A) 100% of such Net Proceeds; and (B) such amount which, when applied to prepay the Loans pursuant to clause (iii) below, would cause the Combined Availability to equal or exceed 25% of the Net Cash Proceeds Maximum Revolver Amount, after giving pro forma effect to such Asset Disposition; provided, however, that:
(i) in the case of an Asset Disposition of any issuance Collateral that is not Eligible Merchandise and Consumables Inventory or Eligible Rental Equipment, so long as no Default or Event of Capital Stock Default shall occur and be continuing, if the Borrowers’ Agent shall deliver a certificate of a Responsible Officer of the Borrowers’ Agent to the Agent at the time of receipt thereof setting forth such Borrower’s or Subsidiary’s intent to reinvest such proceeds in productive assets of a kind then used or usable in the business of such Person within 365 days of receipt of such proceeds, such proceeds shall not constitute Net Proceeds except to the extent they are not so used within such 365-day period;
(ii) with respect to any such Asset Disposition, if after giving pro forma effect thereto, the Combined Availability shall be equal to or exceed 25% of the Maximum Revolver Amount, the requirement to prepay Loans under this Section 4.3 shall not apply; and
(iii) all amounts required to be paid pursuant to this Section 4.3(a) shall be applied by any Loan Party the Agent as follows: (A) in the case of Net Proceeds from Asset Dispositions of U.S. Collateral: (1) first, to the Loans to the extent necessary to cure an Out-of-Formula Condition, (2) second, to the Loans, with a view to minimize breakage costs, (3) third, to cash collateralize Letters of Credit, and (4) fourth, to all other amounts payable under the Obligations in such order as may be determined by the Agent with a view to minimize breakage costs; and (B) in the case of Net Proceeds from Asset Dispositions of Canadian Collateral: (1) first, to the Canadian Revolving Loans to the extent necessary to cure an Out-of-Formula Condition, (2) second, to the Canadian Revolving Loans, with a view to minimize breakage costs, (3) third, to cash collateralize Canadian Letters of Credit and (4) fourth, to all other amounts payable under the Canadian Obligations in such order as may be determined by the Agent with a view to minimize breakage costs; provided that no Net Proceeds from Asset Dispositions of the Canadian Collateral shall be applied to the prepayment outstanding principal amount of the U.S. Revolving Loans as set forth in Section 2.5(f) on the 121st day after the date or to cash collateralize outstanding U.S. Letters of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesCredit.
(b) Unless the Required Lenders shall otherwise agree and except (i) So long as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtednessany U.S. Revolving Loans are outstanding, an amount equal to 100% of the Net Cash Proceeds from any Like-Kind Exchange of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) Relinquished Property shall be promptly applied to the mandatory prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreementoutstanding U.S. Revolving Loans; provided that if on such 121st day a Board-Approved Investment or Proceeds Investmentthat, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to at any time the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the aggregate amount of such Net Cash Proceeds applied to proceeds on deposit in all Like-Kind Exchange Accounts is below $1,000,000, the Indebtedness under the Exit Facility Agreement remittance of such mandatory prepayment shall be applied to deferred until such time as the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the aggregate amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to proceeds on deposit in all Like-Kind Exchange Accounts equals or exceeds $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence1,000,000.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. certain proceeds
(a) Unless 100% of all insurance proceeds payable with respect to any Collateral (the Required Lenders otherwise agreeInsurance Proceeds); provided that the Obligor receiving such Insurance Proceeds may retain the same to the extent that the Borrower has notified the Agent in writing that the Obligor intends to apply such Insurance Proceeds to the repair, restoration or replacement of the affected property (it being understood that to the extent any Insurance Proceeds intended to be applied to such repair, restoration or replacement are not in fact applied within sixty days after the date of receipt of such Insurance Proceeds, then the Borrower shall prepay the Loan in an amount equal to 50% such unapplied portion of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may beInsurance Proceeds), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.;
(b) Unless in connection with the Required Lenders sale of shares or any other Equity Interest in any Acquired Subsidiary, the principal outstanding amount of the Advance made under the Loan to partially finance the acquisition of such Acquired Subsidiary (which in the case of Gupta shall otherwise agree and except be Advance A) or, in the case of any of Advance that related to the financing of more than one Acquired Subsidiary, the portion of such Advance which is attributable to the Acquired Subsidiary being sold (as set forth in the immediately succeeding sentence with respect to relevant Request or, if not set forth in the incurrence of Permitted Subordinated Indebtednessrelevant request, an amount equal to as determined by the Agent); provided, that, if a Default has occurred and is continuing, 100% of the Net Cash Proceeds of related to any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) Disposition shall be applied to the prepayment repayment of the Loans Loan under this Clause 7.2(b); and provided, further, that, so long as set forth in Section 2.5(fno Default has occurred and is continuing, the sale of the Warp Solutions/Spider Cache Business will not trigger a mandatory prepayment under this clause; and
(c) an amount equal to 85% of the aggregate of all Excess Cash Flows for each member of the Group (calculated for each period commencing on the later of the Closing Date or the date on which a prepayment under this subclause (c) was last previously made and ending on the date immediately prior to a payment under this subclause (c)); provided that no repayment shall be required under this subclause (c) unless prior to the date which is 9 months after the Closing Date (i) no Advances have been made under Tranche B and (ii) the Company has not acquired (after the Closing Date and without the incurrence of such incurrence. An amount equal to any Indebtedness) 100% of the Net Cash Proceeds Equity Interests of any incurrence new subsidiary which at the time of Permitted Subordinated Indebtedness acquisition had a twelve month trailing EBITDA of any Loan Party greater than $1,000,000; provided further that, in the event prepayments are required to be made under this subclause (c) (assuming Excess Cash Flow is a positive amount) then Borrower must prepay the loan in full no later than the date which is 21 months after the Closing Date. Mandatory prepayments required under Clause 7.2(a) shall be applied to the prepayment made within one Business Day of the Loans receipt of Insurance Proceeds (except as set forth in Section 2.5(fprovided above), mandatory prepayments required under Clause 7.2(b) shall be made on the 121st same day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such that Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditurereceived, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may bemandatory prepayments required under Clause 7.2(c), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchasesany, shall have be made a binding offer, subject to quarterly commencing on the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice date which is delivered to the Administrative Agent within three (3) Business Days 9 months after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Closing Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. The Loans shall be prepaid in the amounts and under the circumstances set forth below, all such prepayments and/or reductions to be applied as provided below or, if not so provided, then as provided in Section 2.5(c):
(ai) Unless No later than the Required Lenders otherwise agree, an amount equal to 50% first Business Day following the date of receipt by the Net Cash Proceeds Borrower or any of its Subsidiaries of any issuance Net Asset Sale Proceeds in respect of Capital Stock any Asset Sale (including, without limitation, the pending sale by any Loan Party the Borrower of certain assets located at its Whitehorse Facility), such Net Asset Sale Proceeds shall be applied (A) if received prior to the Term Loan Borrowing Date, first to the prepayment of the Loans Pre-Petition Term Loan Obligations in inverse order of maturity and thereafter as set forth in Section 2.5(f2.5(c) or (B) if received on or after the 121st day after Term Loan Borrowing Date, first to the prepayment of the Term Loans in inverse order of maturity and thereafter as set forth in Section 2.5(c) (in each case, other than, subject to Section 8.19, any such Net Asset Sale Proceeds not to exceed $10,000 individually or $50,000 in the aggregate that are applied in accordance with Section 2.5(c)).
(ii) No later than the first Business Day following the date of receipt by the Borrower or any of its Subsidiaries of any Net Insurance/Condemnation Proceeds in respect of any Casualty Loss, such issuance Net Insurance/Condemnation Proceeds shall be applied (A) if received prior to the extent Term Loan Borrowing Date, first to the prepayment of the Pre-Petition Term Loan Obligations in inverse order of maturity and thereafter as set forth in Section 2.5(c) or (B) if received on or after the Term Loan Borrowing Date, first to the prepayment of the Term Loans in inverse order of maturity and thereafter as set forth in Section 2.5(c).
(iii) On the date of receipt by the Borrower of the cash proceeds (any such Net Cash Proceeds are not used proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses) from the issuance of any Capital Securities or any Indebtedness for borrowed money of the Borrower or any of its Subsidiaries after the Closing Date, the entire amount of any such cash proceeds received shall be applied (A) if received prior to the Term Loan Borrowing Date, first to the prepayment of the Pre-Petition Term Loan Obligations in inverse order of maturity and thereafter as set forth in Section 2.5(c) or (B) if received on or after the Term Loan Borrowing Date, first to the prepayment of the Term Loans in inverse order of maturity and thereafter as set forth in Section 2.5(c).
(iv) If as of the last Business Day of any Fiscal Year of the Borrower the Excess Cash Flow of the Borrower and its Subsidiaries for such 121st day Fiscal Year is greater than zero, an aggregate amount equal to make one hundred percent (100%) of such Excess Cash Flow shall be applied on the first Excess Cash Flow Payment Date occurring thereafter first to the prepayment of the Term Loans in inverse order of maturity and thereafter as set forth in Section 2.5(c).
(v) a Capital ExpenditureConcurrently with any prepayment of the Loans pursuant to this Section 2.4(d), (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, deliver to the extent applicableAgent a certificate demonstrating the calculation of the amount of the applicable Net Asset Sale Proceeds, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment Net Insurance/Condemnation Proceeds, or Proceeds Investmentother cash proceeds, as the case may be, that gave rise to such prepayment (the “Net Proceeds Amount”), (y) a Permitted Acquisition (so long as . In the event that the Borrower shall have complied with subsequently determine that the provisions actual Net Proceeds Amount was greater than the amount set forth in such certificate (including if any actual taxes to be paid as a result of Section 5.9, an Asset Sale is less than the estimated taxes to the extent applicable, with respect to any assets acquired by any Group Member pursuant to be paid as a result of such Permitted AcquisitionAsset Sale), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases Borrower shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the promptly make an additional prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment amount of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraphsuch excess, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied concurrently therewith deliver to the prepayment Agent an Officers’ Certificate demonstrating the derivation of the Loans as set forth additional Net Proceeds Amount resulting in Section 2.5(f) on the Prepayment Application Datesuch excess.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Dan River Inc /Ga/)
Mandatory Prepayments. (a) Unless Upon the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds consummation of any issuance of Capital Stock Asset Disposition or upon the receipt by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day any Liquidating Distribution after the date Closing Date, in each case within 270 days after the Borrower or any of such issuance to the extent such its Subsidiaries receives any Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureSale Proceeds, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the outstanding Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date amount of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth Sale Proceeds, CKE FIFTH AMENDED AND RESTATED CREDIT AGREEMENT in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied accordance with the provisions of Section 5.92.13; PROVIDED, HOWEVER, that such Net Sale Proceeds which the Borrower or such Subsidiary shall, within 270 days after receipt thereof, use to reinvest in the extent applicablebusiness of the Borrower of its Subsidiaries, with respect to shall not be included in determining the aggregate Net Sale Proceeds for such period; PROVIDED, FURTHER that, if an Event of Default shall have occurred and be continuing on the date such Net Sale Proceeds are received by the Borrower or any assets acquired by of its Subsidiaries or at any Group Member pursuant to time during such Board-Approved Investment or Proceeds Investment270 day period, as the case may be), (y) a Permitted Acquisition (so long as then the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the outstanding Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Sale Proceeds minus the amount (or, if any portion of such Net Cash Proceeds applied proceeds shall have been reinvested prior to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment occurrence of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day such Event of receipt Default, 100% of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the remaining amount of Net Cash Sale Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to not so reinvested), in accordance with the immediately preceding sentenceprovisions of Section 2.13, on the later of the date such Net Sale Proceeds are received by the Borrower or any of its Subsidiaries or the date of the occurrence of such Event of Default.
(b) On each Reinvestment Prepayment Datedate on which the Borrower or any of its Subsidiaries receives any Net Equity Proceeds, the Borrower shall prepay the outstanding Loans in an amount equal to (i) 50% of such Net Equity Proceeds if both (A) the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment Leverage Ratio as of the Loans end of the fiscal quarter immediately preceding such date as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice to which financial statements are required to have been delivered pursuant to this paragraphSections 6.1(a) and 6.1(b), as applicable, on a pro forma basis after giving effect to any prepayment made by the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph Borrower pursuant to a Reinvestment Notice shall not exceed clause (xii)(A) with respect of this Section 2.12(b), is less than 2.0 to any single Asset Sale or Recovery Event, $30,000,000 1.0 and (yB) in the aggregate during any fiscal year no Default or Event of Default has occurred or is continuing as a result of the Borrower's failure to deliver any financial statement or Compliance Certificate as and when required pursuant to Section 6.1(a), $200,000,000; provided that 6.1(b) or 6.1(e), as applicable and (ii) 75% of such Net Cash Equity Proceeds that if either (A) the Leverage Ratio as of the end of the fiscal quarter immediately preceding such date as to which financial statements are required to be applied have been delivered pursuant to make Permitted Net Cash Proceeds Reinvestments described in Section 6.1(a) or 6.1(b), as applicable, is greater than or equal to 2.0 to 1.0 (but only until the Leverage Ratio is less than 2.0 to 1.0, at which time clause (i) of the definition thereof this Section 2.12(b) shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in apply (unless clause (xii)(B) of this Section 2.12(b) shall then be applicable)) or (yB) any Default or Event of this sentenceDefault has occurred and is continuing as a result of the Borrower's failure to deliver any financial statement or Compliance Certificate as and when required pursuant to Sections 6.1(a), 6.1(b) or 6.1(e), as applicable, in each case in accordance with the provisions of Section 2.13.
(c) On each date on which the Borrower or any of its Subsidiaries receives any Net Debt Proceeds or becomes or remains liable with respect to Indebtedness with respect to Capitalized Leases in excess of $100,000,000 in the aggregate at any one time outstanding for the Borrower and its Subsidiaries, the Borrower shall prepay the outstanding Loans in an amount equal to 100% of such Net Debt Proceeds or 100% of the amount by which the aggregate amount of Indebtedness of the Borrower and its Subsidiaries with respect to Capitalized Leases exceeds $100,000,000 on such date, respectively, in accordance with the provisions of Section 2.13.
(d) Unless On each day on which the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made Total Revolving Loan Commitment is reduced pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.Section
Appears in 1 contract
Mandatory Prepayments. (a) Unless The Borrower shall be required to prepay the Required Lenders otherwise agreeoutstanding principal balance of (and all accrued and unpaid interest on) any Advance (such prepayment, a “Mandatory Prepayment”) with respect to an amount equal Eligible Loan, without notice or demand of any kind to 50% the Borrower, within four (4) Business Days (except in the case of (iii) below, in which event the time frame shall be determined in accordance with the sections references therein) of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to applicable event set forth below, as follows:
(i) After a payment default or other material default on the prepayment part of the Loans as set forth in Section 2.5(fUnderlying Obligor with respect to such Eligible Loan has continued uncured for a period of more than forty-five (45) on days (provided, however, that Borrower will be considered to have made a Mandatory Prepayment regardless of whether it makes the 121st day repayment before or promptly after the date close of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st forty-five (45) day to make period); or
(vii) After a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment voluntary or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, involuntary bankruptcy petition is filed with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds InvestmentUnderlying Obligor of the Eligible Loan and, as in the case may be)of an involuntary bankruptcy petition, is not withdrawn, discharged, stayed or dismissed within ninety (y90) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day days after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesit is filed.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) The Borrower shall be applied required to immediately prepay the prepayment entire Principal Amount upon either (i) the occurrence of the Loans as set forth in Section 2.5(f) on the date an Event of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition)Default, or (zii) Permitted Open Market Purchasesthe Termination Date.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered Notwithstanding anything to the Administrative Agent within three contrary hereunder, neither (3i) Business Days after an event of default under any Eligible Loan pledged as security for an Advance, nor (ii) any breach by the day Borrower or the Guarantor of receipt by a Group Member of the Net Cash Proceeds of (A) any Asset Sale representation or Recovery Event that results from the sale warranty under this Agreement or other disposition of, or payment with respect to, any of the Collateral, other Credit Documents (other than an amount equal intentional misstatement or misrepresentation which induces Lender to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement include an Asset as an Eligible Loan) and which shall be applied to the prepayment of the Loans as set forth in Section 2.5(fremain un-remedied for forty-five (45) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) days or (yB) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year any covenant of the Borrower ending December 31, 2008, or the Applicable Amount Guarantor under this Agreement or any of the Adjusted Excess Cash Flow other Credit Documents which shall remain un-remedied for any fiscal year forty-five (45) days, that in each case can in effect be “cured” by removal of one or more Eligible Loans from the Borrower Eligible Loan Pool shall in and of itself be applied deemed to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans constitute a Default under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaidAgreement.
Appears in 1 contract
Samples: Credit and Security Agreement (NorthStar Real Estate Income Trust, Inc.)
Mandatory Prepayments. (a) Unless The Borrower shall prepay the Required Lenders otherwise agreeLoans, to the extent of the total amounts due hereunder, including interest and fees, in an amount equal to 50(i) 100% of the Net Cash Proceeds net proceeds received from the sale or other disposition of all or any part of the assets of the Borrower or any of its Subsidiaries; (ii) 100% of the net proceeds received by the Borrower or any of its Subsidiaries from the issuance of Capital Stock debt or preferred stock; (iii) 100% of the net proceeds received from the issuance of common equity (including upon the exercise of warrants and options), by the Borrower or any of its Subsidiaries; (iv) 100% of all insurance recoveries in excess of amounts applied promptly to replace or restore any properties in respect of which such proceeds are paid to the Borrower and its subsidiaries. In addition, all amounts then owing under this Agreement (including all principal, interest, fees and expenses) shall become due and payable upon the earlier of (a) the termination of the Asset Purchase Agreement, and (b)(i) the FCC's denial of the FCC Assignment Applications, or the failure of the FCC Assignment Application or, if granted, the FCC Order to remain pending or in full force and effect, or the FCC's determination to reconsider or review any grant of the FCC Assignment Application; or (ii) the filing by any Loan Party shall Person of a petition to deny or other objection (that the Agent determines, in its sole discretion, to be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9material), to the extent applicableFCC Assignment Application, or any petition for reconsideration, petition for review, request for stay, or other request for appeal, with respect to the FCC's grant of the FCC Assignment Application, unless in any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, has reasonable grounds to the extent applicable, believe that it will prevail in challenging any such event in (b)(i) or (b)(ii) and Borrower is continuing to diligently pursue its alternatives with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesthereto.
(b) Unless the Required Lenders Borrower indicates otherwise, the mandatory prepayments pursuant to this subsection 2.5 shall otherwise agree first be used to prepay the then outstanding ABR Loans made to the Borrower and except as set forth second to prepay the then outstanding Eurodollar Loans made to the Borrower in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the order in which such Eurodollar Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesbecome due.
(c) Unless the Required Lenders The provisions of subsections 2.15 and 2.17 shall otherwise agree and unless a Reinvestment Notice is delivered apply to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made all mandatory prepayments pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence2.5.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. (a) Unless the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party The Borrower shall be applied to the prepayment of immediately prepay the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance made to it to the extent the aggregate principal amount of such Net Cash Proceeds are not used prior Loans outstanding at any time exceeds the total amount of the Commitments to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member as reduced pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasessubsection 2.4.
(b) Unless the Required Lenders Borrower indicates otherwise, the mandatory prepayments pursuant to this subsection 2.7 shall otherwise agree first be used to prepay the then outstanding ABR Loans made to the Borrower and except as set forth second to prepay the then outstanding Eurodollar Loans made to the Borrower in the immediately succeeding sentence with respect order in which such Eurodollar Loans become due. In the event the amount of any prepayment of Loans required to be made under this subsection 2.7(b) shall exceed the incurrence aggregate principal amount of Permitted Subordinated Indebtednesssuch Loans which are ABR Loans (the amount of any such excess being called the "Excess Amount"), the Borrower shall have the right, in lieu of making such prepayment in full, to prepay all such outstanding ABR Loans when due and to deposit on the date of the required prepayment an amount equal to 100% the Excess Amount with the Agent in a cash collateral account maintained by and in the sole dominion and control of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) Agent. Any amounts so deposited shall be held by the Agent as collateral security for the Obligations and applied to the prepayment of the applicable Eurodollar Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentencethe current Interest Periods applicable thereto. On any Business Day on which (A) collected amounts remain on deposit in or to the extent credit of such Net Cash Proceeds are not used prior cash collateral account after giving effect to the payments made on such 121st day pursuant to make this subsection 2.7(b) and (vB) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, delivered to the extent applicableAgent a written request or a telephonic request (which shall be promptly confirmed in writing) that such remaining collected amounts be invested in the Cash Equivalents specified in such request, with respect to any assets acquired by any Group Member pursuant to the Agent shall invest such Board-Approved Investment or Proceeds Investmentremaining collected amounts in such Cash Equivalents on an overnight basis; PROVIDED, as HOWEVER, that the case may be), (y) a Permitted Acquisition (so long as the Borrower Agent shall have complied with the provisions of Section 5.9, continuous dominion and full control over any such investments (and over any interest that accrues thereon) to the same extent applicable, that it has dominion and control over such cash collateral account. Any such deposited amounts so invested (together with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (zinterest thereon) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to deposited in such cash collateral account not later than 11:30
a. m. on the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchasesnext succeeding Business Day.
(c) Unless the Required Lenders The provisions of subsection 2.17 shall otherwise agree and unless a Reinvestment Notice is delivered apply to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made all mandatory prepayments pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence2.7.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
Appears in 1 contract
Mandatory Prepayments. (a) Unless Upon the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds consummation of any issuance of Capital Stock Asset Disposition or upon the receipt by any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day any Liquidating Distribution after the date Closing Date, in each case within 270 days after the Borrower or any of such issuance to the extent such its Subsidiaries receives any Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital ExpenditureSale Proceeds, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the outstanding Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date amount of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth Sale Proceeds, in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied accordance with the provisions of Section 5.92.13; PROVIDED, HOWEVER, that such Net Sale Proceeds which the Borrower or such Subsidiary shall, within 270 days after receipt thereof, use to reinvest in the extent applicablebusiness of the Borrower of its Subsidiaries, with respect to shall not be included in determining the aggregate Net Sale Proceeds for such period; PROVIDED, FURTHER that, if an Event of Default shall have occurred and be continuing on the date such Net Sale Proceeds are received by the Borrower or any assets acquired by of its Subsidiaries or at any Group Member pursuant to time during such Board-Approved Investment or Proceeds Investment270 day period, as the case may be), (y) a Permitted Acquisition (so long as then the Borrower shall have complied with prepay the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the outstanding Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Sale Proceeds (or, if any portion of such proceeds shall have been reinvested prior to the occurrence of such Event of Default, 100% of such remaining amount of Net Sale Proceeds not so reinvested), in accordance with the provisions of Section 2.13, on the later of the date such Net Sale Proceeds are received by the Borrower or any of its Subsidiaries or the date of the occurrence of such Event of Default.
(b) On each date on which the Borrower or any of its Subsidiaries receives any Net Equity Proceeds, the Borrower shall prepay the outstanding Loans in an amount equal to (i) 50% of such Net Equity Proceeds if no Default or Event of Default has occurred or is continuing as a result of the Borrower's failure to deliver any financial statement or Compliance CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT Certificate as and when required pursuant to Section 6.1(a), 6.1(b) or 6.1(e), as applicable and (ii) 75% of such Net Equity Proceeds if any Default or Event of Default has occurred and is continuing as a result of the Borrower's failure to deliver any financial statement or Compliance Certificate as and when required pursuant to Sections 6.1(a), 6.1(b) or 6.1(e), as applicable, in each case in accordance with the provisions of Section 2.13.
(c) On each date on which the Borrower or any of its Subsidiaries receives any Net Debt Proceeds or becomes or remains liable with respect to Indebtedness with respect to Capitalized Leases in excess of $100,000,000 in the aggregate at any one time outstanding for the Borrower and its Subsidiaries, the Borrower shall prepay the outstanding Loans in an amount equal to 100% of such Net Debt Proceeds or 100% of the amount by which the aggregate amount of Indebtedness of the Borrower and its Subsidiaries with respect to Capitalized Leases exceeds $100,000,000 on such date, respectively, in accordance with the provisions of Section 2.13.
(d) On each day on which the Total Revolving Loan Commitment is reduced pursuant to Section 2.10 the Borrower shall prepay the Revolving Loans to the extent, if any, that the outstanding principal amount of the Revolving Loans exceeds such reduced Total Revolving Loan Commitment.
(e) If at any time and for any reason the aggregate principal amount of Revolving Loans plus the L/C Obligations then outstanding are greater than the Total Revolving Loan Commitment, the Borrower shall immediately prepay the Revolving Loans in an amount equal to such excess. In addition, to the extent at any time and for any reason, the Total Revolving Loan Commitment minus the aggregate principal amount of Revolving Loans then outstanding, is less than the amount of L/C Obligations outstanding at such Net time, the Borrower shall Cash Proceeds applied to Collateralize the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth L/C Obligations in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect amount by which such L/C Obligations exceed the amount equal to the relevant Reinvestment Event shall be applied to difference between the prepayment Total Revolving Loan Commitment and such aggregate principal amount of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentenceRevolving Loans.
(df) Unless The Borrower shall make each Term Loan Paydown in accordance with Section 2.1.
(g) Nothing in this Section 2.12 shall be construed to constitute the Required Lenders Lenders' consent to any transactions referred to in Sections 2.12(a), 2.12(b) or 2.12(c) above which transaction is not expressly permitted by the terms of this Agreement.
(h) In the event that there shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted be Consolidated Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of 2008), the Borrower ending December 31shall, 2008no later than 90 days after the end of such fiscal year, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of prepay the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant an aggregate amount equal to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.CKE SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT
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Mandatory Prepayments. (a) Unless Upon the Required Lenders otherwise agree, an amount equal to 50% of the Net Cash Proceeds consummation of any issuance of Capital Stock securities or other equity offering by any Loan Party shall be applied to Borrower (excluding (i) equity issued upon exercise of employee and director options or as restricted stock issued under compensatory arrangements with employees, consultants and directors, (ii) equity issued in a stock split, stock dividend or similar capital event not for the prepayment purpose of raising cash, (iii) equity issued in a business combination or reorganization not for the Loans as set forth purpose of raising cash, (iv) equity issued in Section 2.5(f) on connection with the 121st day after the date exercise of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make any warrant issued by HoldCo, (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (equity issued in either case so long as the Borrower shall have complied connection with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as but in no event issued more than 30 days from the Borrower shall have complied with the provisions consummation of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition)) in an aggregate amount not to exceed 3% of the then current issued and outstanding shares of HoldCo, (zvi) Permitted Open Market Purchases or (zz) a prepayment or repayment equity issued for cash for the purpose of funding the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but acquisition price and related costs and expenses of one or more Group Members shall have entered into a binding letter of intent Permitted Acquisitions, and (vii) any other securities or definitive purchase documentation with respect thereto (or, with respect equity offering not otherwise permitted hereunder in an aggregate amount not to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth thereinexceed $1,000,000 in any twelve-month period), then the Payment Date Borrowers shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the make a prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (Term Loan in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment lesser of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) the outstanding balance of the definition thereof Term Loan and (ii) the amount of the net proceeds from such securities or other equity offering. Notwithstanding any other provision of this Agreement, if the Lender determines (which determination shall be excluded conclusive) (i) that any applicable law, rule, or regulation, or any change in determining the aggregate Net Cash Proceeds subject interpretation of any such law, rule, or regulation shall make it unlawful or impossible for the Lender to charge or collect interest at the Eurodollar-Based Rate; (ii) that adequate and reasonable means do not exist for ascertaining the Eurodollar Base Rate; (iii) that deposits in Dollars (in the applicable amounts) are not being offered to the limitations set forth Lender in clause (x) the relevant market; or (yiv) that the Eurodollar Base Rate will not adequately and fairly reflect the cost to the Lender of this sentence.
(d) Unless making or maintaining the Required Lenders shall otherwise agreeTerm Loan, commencing with then upon written notice from the fiscal year Lender to the Borrowers, the entire outstanding principal balance of the Borrower ending December 31, 2008, Term Loan shall bear interest at the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application DatePrime-Based Rate.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on the amount prepaid.
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Mandatory Prepayments. (a) Within ten (10) Business Days after the consummation of any sale or other disposition of Property (including the sale or other disposition of Receivables) by the Borrower or any Restricted Subsidiary if the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for such sale or other disposition, together with the aggregate fair market value of the consideration received by the Borrower or its Restricted Subsidiaries for all other such sales or other dispositions consummated during the period of twelve consecutive months immediately preceding the consummation of such sale or other disposition, exceeds $25,000,000, the Borrower shall deliver an Officer’s Certificate to the Administrative Agent and the Lenders (notifying the Administrative Agent and the Lenders thereof and certifying the amount of Net Cash Proceeds received from such sales or other dispositions during such period). Unless within five (5) Business Days after receipt of such Officer’s Certificate the Administrative Agent, on behalf of the Required Lenders, shall have notified the Borrower of the Required Lenders’ election to forego prepayment, then on the date that is seven (7) Business Days after the date on which the Borrower shall have delivered such Officer’s Certificate to the Administrative Agent and the Lenders otherwise agree, the Borrower shall make a prepayment of the Loans in an amount equal to 50the Ratable Share of the amount of Net Cash Proceeds certified in such Officer’s Certificate (or such lesser principal amount as shall then be outstanding), at 100% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party shall be applied to principal amount so prepaid. Notwithstanding the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditureforegoing, (wi) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal up to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party such sales or other dispositions with respect to which the Borrower shall have given the Administrative Agent written notice (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(fthe applicable Officer’s Certificate delivered pursuant to the first sentence of this clause (a)) on of its intention to repair or replace the date Property subject to any such sale or other disposition or invest such Net Cash Proceeds in the purchase of Property (other than securities, unless those securities represent equity interests in an entity that becomes a Guarantor or an Unrestricted Subsidiary permitted hereunder (and provided that if such incurrence. An amount equal to 100% Guarantor or Unrestricted Subsidiary is a newly formed Person, such Person shall promptly use the portion of the Net Cash Proceeds received by it for the sale of any incurrence its equity interests in order to purchase Property to be used by it in its business)) to be used by one or more of Permitted Subordinated Indebtedness of any Loan Party the Borrower or the Guarantors in their businesses (such repair, replacement or investment referred to as a “Reinvestment”) within six (6) months following such sale or other disposition, shall not be applied subject to the prepayment provisions of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end first two sentences of this sentenceclause (a) unless and to the extent that such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower applicable period shall have complied with the provisions of Section 5.9expired without such repair, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment replacement or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have investment having been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrencemade, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (xii) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of only the Net Cash Proceeds from sales or other dispositions of any Asset Sale or Recovery Event that results from Property (including the sale or other disposition of, or payment of Receivables) with a fair market value of the consideration received therefor in excess of $25,000,000 (above and beyond the fair market value of the consideration of the dispositions of the Property with respect to, any of to which the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied shall have been subject to Reinvestment) shall be subject to the Indebtedness under provisions of the Exit Facility Agreement first two sentences of this clause (a).
(b) Any prepayments made by the Borrower pursuant to Section 2.12(a) above shall be applied by the Administrative Agent as follows: first to repay Term Loans on a pro rata basis as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and, unless otherwise provided in the Incremental Facility Amendment applicable to the prepayment of the Loans as set forth in Section 2.5(f) within ten related Incremental Term Loan, each Incremental Term Loan (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under this Section 2.5 shall be accompanied by accrued interest to the date of such prepayment on to be, as to each of Term Loan A, Term Loan A-1, Term Loan A-2 and Incremental Term Loan, to the amount prepaid.remaining scheduled principal installments owing in respect of each such Term Loan under Section 2.9(d),
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Mandatory Prepayments. (a) Unless If the Required Lenders otherwise agreeBorrower or any of its Subsidiaries receives 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 repair or replacement of such damaged or condemned Property within 30 days of the receipt thereof, the Borrower shall, on such 30th day prepay the Loans in an amount equal to the amount of such proceeds not so applied.
(b) In the event that the Borrower or any of its Subsidiaries makes an Equity Offering, the Borrower shall immediately prepay the Loans in an amount equal to 100% of the Net Proceeds of such Equity Offering; provided that if such Equity Offering is the result of the exercise of an option or other right to purchase beneficial or equity interests in the Borrower pursuant to the 1996 Stock Incentive Plan or the 2000 Non-Qualified Stock Option Plan, each as in effect as of the Restatement Date, then such prepayment shall be in an amount equal to 50% of the Net Cash Proceeds of any issuance of Capital Stock by any Loan Party such Equity Offering. No such prepayment shall be applied to limit or restrict the prepayment rights and remedies of the Loans as set forth in Section 2.5(f) on the 121st day after the date of such issuance to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness Lenders under the Exit Facility Agreement; provided that if on such 121st day Loan Documents upon the occurrence and during the continuance of a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market Purchases.
(b) Unless the Required Lenders shall otherwise agree and except as set forth in the immediately succeeding sentence with respect to the incurrence of Permitted Subordinated Indebtedness, an amount equal to 100% of the Net Cash Proceeds of any incurrence of Indebtedness of any Loan Party (excluding any Indebtedness permitted to be incurred under Section 6.2) shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the date of such incurrence. An amount equal to 100% of the Net Cash Proceeds of any incurrence of Permitted Subordinated Indebtedness of any Loan Party shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the 121st day (the “Payment Date”) after the date of such incurrence (as such date may be extended pursuant to the proviso set forth at the end of this sentence) to the extent such Net Cash Proceeds are not used prior to such 121st day to make (v) a Capital Expenditure, (w) a Restricted Payment, (x) a Board-Approved Investment or a Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment or Proceeds Investment, as the case may be), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), (z) Permitted Open Market Purchases or (zz) a prepayment or repayment of the Indebtedness under the Exit Facility Agreement; provided that if on such 121st day a Board-Approved Investment or Proceeds Investment, a Permitted Acquisition or Permitted Open Market Purchases shall not have been consummated but one or more Group Members shall have entered into a binding letter of intent or definitive purchase documentation with respect thereto (or, with respect to Permitted Open Market Purchases, shall have made a binding offer, subject to the conditions set forth therein), then the Payment Date shall be extended to the 181st day after such incurrence, and on such day the relevant Net Cash Proceeds shall be applied to the prepayment of the Loans as specified above to the extent such Net Cash Proceeds are not used prior to such 181st day to consummate (x) a Board-Approved Investment or Proceeds Investment (in either case so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Board-Approved Investment), (y) a Permitted Acquisition (so long as the Borrower shall have complied with the provisions of Section 5.9, to the extent applicable, with respect to any assets acquired by any Group Member pursuant to such Permitted Acquisition), or (z) Permitted Open Market PurchasesDefault.
(c) Unless the Required Lenders shall otherwise agree and unless a Reinvestment Notice is delivered to the Administrative Agent within three (3) Business Days after the day of receipt by a Group Member of the Net Cash Proceeds of any Asset Sale or Recovery Event that results from the sale or other disposition of, or payment with respect to, any of the Collateral, an amount equal to 100% of such Net Cash Proceeds minus the amount of such Net Cash Proceeds applied to the Indebtedness under the Exit Facility Agreement shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) within ten (10) Business Days after the day of receipt of any such Net Cash Proceeds by any Group Member; provided that no prepayment of the Loans shall be required to be made pursuant to this subsection until the amount of Net Cash Proceeds to be applied to make such prepayment is at least equal to $10,000,000. If a Reinvestment Notice is timely delivered pursuant to the immediately preceding sentence, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied to the prepayment of the Loans as set forth in Section 2.5(f). Notwithstanding the delivery of a Reinvestment Notice pursuant to this paragraph, the aggregate Net Cash Proceeds of Asset Sales and Recovery Events that may be excluded from the requirement to prepay the Loans contained in this paragraph pursuant to a Reinvestment Notice shall not exceed (x) with respect to any single Asset Sale or Recovery Event, $30,000,000 and (y) in the aggregate during any fiscal year of the Borrower, $200,000,000; provided that Net Cash Proceeds that are to be applied to make Permitted Net Cash Proceeds Reinvestments described in clause (i) of the definition thereof shall be excluded in determining the aggregate Net Cash Proceeds subject to the limitations set forth in clause (x) or (y) of this sentence.
(d) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Excess Cash Flow for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(e) Unless the Required Lenders shall otherwise agree, commencing with the fiscal year of the Borrower ending December 31, 2008, the Applicable Amount of the Adjusted Positive EBITDA Variance for any fiscal year of the Borrower shall be applied to the prepayment of the Loans as set forth in Section 2.5(f) on the Prepayment Application Date.
(f) Amounts to be applied in connection with prepayments made pursuant to this Section 2.5 shall be applied to the prepayment of the Loans in accordance with Section 2.11(b). The application of any prepayment pursuant to this Section 2.5 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each prepayment of the Loans under pursuant to this Section 2.5 2.4 shall be (i) applied to the outstanding Reduction Installments in inverse order of maturity and (ii) accompanied by payment in full of all accrued interest thereon to and including the date of such prepayment. The Borrower agrees to give the Agent at least five Business Days' irrevocable written notice of any prepayment on under this Section 2.4. For the amount prepaidavoidance of doubt, no amounts prepaid under this Section 2.4 shall be available for reborrowing.
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Samples: Credit Agreement (Point 360)
