Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i). (ii) [Intentionally Omitted]. (iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below). (iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv). (v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b). (vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment. (vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess. (viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. (ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 3 contracts
Samples: Credit Agreement (Novanta Inc), Credit Agreement (Novanta Inc), Credit Agreement (Novanta Inc)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries (x) Disposes of any property pursuant to Section 7.05(l) in a Disposition constituting an Asset Sale which results in the realization by such Person of Net Cash ProceedsProceeds or (y) receives proceeds of casualty insurance or condemnation awards (or payments in lieu thereof), the Borrowers Company shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers Company (as notified by the Lead Borrower Company to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 270 days or, if the Consolidated Leverage Ratio is less than 3.50, eighteen (18) months after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment (with a corresponding commitment reduction) of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility Aggregate Commitments at such time, in either such case, the Borrowers Company shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiiii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Company for use in the ordinary course of its business, and the Revolving Credit Facility Aggregate Commitments shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii2.06(b). 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 the Borrowers Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 3 contracts
Samples: Credit Agreement (Buckeye Technologies Inc), Credit Agreement (Buckeye Technologies Inc), Credit Agreement (Buckeye Technologies Inc)
Mandatory. So long as (i) If the commitments in respect of each of the Bridge Facilities have been terminated without the funding of any Loan Party loans thereunder or (ii) the loans and any accrued interest, fees and other obligations under the Bridge Facilities have been paid in full, in the event that the Borrower or any of its Domestic Subsidiaries Disposes of receives any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsProceeds arising from any Debt Issuance, then the Borrowers Borrower shall prepay the Loans hereunder in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three not later than five (35) Business Days of following the receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to or such Subsidiary of such Net Cash Proceeds. The Borrower shall promptly (and not later than five (5) Business Days following receipt thereof) notify the Administrative Agent on or prior to of the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all receipt by the Borrower or any portion Subsidiary, as applicable, of such Net Cash Proceeds in assets used or useful in the business and such notice shall be accompanied by a reasonably detailed calculation of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either . Each prepayment of Loans under this clause (xb) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment in full of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of and any accrued but unpaid interest with respect to the 364-Day Tranche Loans equal before being applied to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for prepay the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that any accrued but unpaid interest with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of 18-Month Tranche Loans and shall be accompanied by accrued interest and fees on the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior amount prepaid to the date of receipt of such insurance proceeds or condemnation awards)fixed for prepayment, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; andplus, in the case of prepayments any Eurodollar Loans that are prepaid on any day other than the last day of the Revolving Credit Facility required Interest Period applicable to it, the Borrower shall pay any amounts due to the Lenders as a result thereof pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable2.17.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 3 contracts
Samples: Credit Agreement (PACIFIC GAS & ELECTRIC Co), Credit Agreement (PACIFIC GAS & ELECTRIC Co), Term Loan Credit Agreement (PG&E Corp)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Company shall prepay prepay, immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $50,000,000; provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Company (as notified by the Lead Borrower Company to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.04(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Company or any of its Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.12), the Borrowers Company shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary Restricted Subsidiary.
(iii) Upon an increase of the Revolving Credit Commitment or Term A-1 Loans, or both, in accordance with Section 2.13 or upon the establishment of the Incremental Term Facility in accordance with Section 2.14, the Company shall immediately prepay, in full, the Outstanding Amount of all Term A-2 Loans together with all accrued but unpaid interest to the date of such prepayments to be applied as set forth in clauses (v) and (viii) below)prepayment.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) (other than pursuant to clause (iii) of this Section 2.04(b)) shall be applied, first, ratably to each of the Term Facility Facilities and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installmentson a pro-rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivii) of this Section 2.05(b2.04(b).
(viv) Notwithstanding any of the other provisions of clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), so long as no Default under Section 8.01(a8.01(b), Section 8.01(g) or Section 8.01(f8.01(h), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,00050,000,000, the Borrowers Company may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i) or (ii) of this Section 2.04(b) to be applied to prepay Loans exceeds $50,000,000. During such deferral period the Company may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article V, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.04(b). Upon the occurrence of a Default under Section 8.01(b), Section 8.01(g) or Section 8.01(h), or an Event of Default during any such deferral period, the Company shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Company and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.04(b) (without giving effect to the first and second sentences of this clause (v)) but which have not be obligated to make such prepaymentpreviously been so applied.
(viivi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Company shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Company for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 3 contracts
Samples: Amendment Agreement (CSC Holdings Inc), Credit Agreement (Cablevision Systems Corp /Ny), Credit Agreement (Cablevision Systems Corp /Ny)
Mandatory. (i) If In case of receipt by any Loan Party or any of its Domestic Subsidiaries Disposes (other than any Non-Recourse Subsidiary or Immaterial Subsidiary) of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Disposition Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% within thirty (30) days after receipt of such Net Cash Proceeds within three (3) Business Days of receipt thereof by Disposition Proceeds, such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower Loan Party shall deliver a written notice to the Administrative Agent on confirming whether it will, or prior to will cause such Subsidiary to:
(A) apply such Net Disposition Proceeds within a twelve (12) month period after the date receipt of such Disposition)Net Disposition Proceeds to prepay the Loans, and so long as no Default shall have occurred and be continuingor repurchase, repay, redeem or prepay Indebtedness of any Loan Party or any Subsidiary thereof, in which case, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of shall (and the Loan Parties so long as shall cause such Subsidiaries to) apply such Net Disposition Proceeds in accordance with the foregoing within 365 days the period referred to herein; or
(B) invest such Net Disposition Proceeds within a twelve (12)-month period after the receipt of such Net Cash Proceeds, either Disposition Proceeds (xwhich period may be extended for up to six (6) months thereafter if such purchase shall have been consummated Loan Party or (y) a binding definitive agreement for such purchase shall have been Subsidiary has entered into binding commitments with respect thereto with an unaffiliated third party) in assets of the general type used by the Loan Parties and such purchase shall have been consummated within 180 days after such binding definitive agreementtheir Subsidiaries in their line of business, in each of cases which case, such Loan Party or such Subsidiary shall (xand the Loan Parties shall cause such Subsidiaries to) and (y) as certified by apply such Net Disposition Proceeds in accordance with the Lead Borrower foregoing within the period referred to herein, provided that in writing the event the relevant Loan Party fails to deliver such notice in the Administrative Agent; and provided further, however, 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 relevant period set forth in this Section 2.05(b)(i)clause (b)(i) above, such Loan Party shall apply, or cause the relevant Subsidiary to apply, such Net Disposition Proceeds to prepay the Loans, or repurchase, repay, redeem or prepay Indebtedness of any Loan Party or any Subsidiary thereof within the twelve (12) months after receipt of such Net Disposition Proceeds.
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days In case of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause Subsidiaries (iother than any Non-Recourse Subsidiary or Immaterial Subsidiary) of this Section 2.05(b)any Net Debt Incurrence Proceeds, such Loan Party shall, or shall cause such Subsidiary to, prepay the Borrowers shall Loans, or repurchase, repay, redeem or prepay an aggregate principal amount Indebtedness of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments and, to be applied as set forth in clauses (v) and (viii) below); providedthe extent provided herein, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereofCash Collateralize L/C Obligations), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after Subsidiary, on the fifth (5th) Business Day succeeding the day of receipt of such cash proceeds either (x) Net Debt Incurrence Proceeds by such Loan Party or such Subsidiary, in an amount equal to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment Net Debt Incurrence Proceeds. Prepayments of the Loans as set forth made pursuant to this clause (ii) shall be applied in this accordance with Section 2.05(b)(iv2.04(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)2.04(b) shall be applied, first, shall to the New Loans held by all New Lenders in accordance with their Applicable Percentages (allocated to principal repayment installments thereof as set forth in the applicable Joinder Agreement) (other than in the case of a prepayment pursuant to Section 2.04(b)(iii), in which case such prepayment will be applied ratably first to the following clause second (and shall not be applied to clause first)), second, to the L/C Borrowings and the Swing Line LoansBorrowings, secondthird, shall be applied ratably to the outstanding Revolving Credit LoansLoans and New Loans held by all Lenders and New Lenders, respectively, in accordance with their Applicable Percentages, and, thirdfourth, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required . Amounts to be applied pursuant to repay this Section 2.04(b) to the mandatory prepayment of New Loans, Refinancing Loans but only so long and Loans shall be applied, as the repatriation of applicable, first to reduce outstanding Base Rate Loans and any amounts remaining after such amount of Net Cash Proceeds would result in material adverse tax consequences application shall be applied to Holdings and its Subsidiaries on a consolidated basisprepay Eurodollar Rate Loans.
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Atlantica Sustainable Infrastructure PLC), Credit and Guaranty Agreement (Atlantica Sustainable Infrastructure PLC), Credit and Guaranty Agreement (Atlantica Yield PLC)
Mandatory. (i) If any Loan Party Prior to the Debt Assumption Date, the Borrower shall be under no obligation to prepay the Loans, except as provided in Section 2.05(c).
(ii) On or after the Debt Assumption Date, upon the incurrence or issuance by the Borrower or any of its Domestic Restricted Subsidiaries Disposes of of:
(A) any property Takeout Debt issued or incurred pursuant to Section 7.05(la Bridge Takeout Notice; or
(B) which results any equity or equity-linked securities in the realization by such Person of Net Cash Proceedsany direct or indirect public offering or private placement, but excluding issuance pursuant to employee stock plans, in each case, the Borrowers Borrower shall prepay an aggregate principal amount of the Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified gross cash proceeds received by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Restricted Subsidiaries of from any Indebtedness (such Takeout Debt or equity or equity-linked securities less, in each case, all reasonable and customary out-of-pocket legal, underwriting and other than Indebtedness expressly permitted fees, costs and expenses incurred or reasonably anticipated to be incurred or issued pursuant to Section 7.02)within 90 days thereof in connection therewith, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) one Business Days of Day following receipt thereof by Holdings the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiiSection 2.05(b)(iv) below).
(iviii) Upon any Extraordinary Receipt received by On or paid to or for after the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b)Debt Assumption Date, the Borrowers Borrower shall prepay an aggregate principal amount of the Loans equal to 100% of such Net Cash the amount of Excess Proceeds on the date (the “Excess Proceeds Prepayment Trigger Date”) that the amount of Excess Proceeds exceeds the Excess Proceeds Threshold, within three (3) one Business Days of receipt thereof by such Loan Party or such Subsidiary Day following the Excess Proceeds Prepayment Trigger Date (such prepayments to be applied as set forth in clauses (v) and (viiiSection 2.05(b)(iv) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied first to the Term Facility Loans of each Lender pro rata in accordance with their Applicable Percentages, and second, any applicable Incremental Tranche andexcess after the application of such proceeds in accordance with clause first may be retained by the Borrower. Notwithstanding the foregoing, in each case, any proceeds from the sale or other placement of Takeout Debt or Takeout Equity funded or purchased by a Lender or one or more of its Affiliates will be applied first to the principal repayment installments thereof first, in direct order Loans of maturity for the first four installments, such Lender and second, pro rata to any excess after the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility application of such proceeds in the manner set forth in accordance with clause (viii) first of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to sentence will be applied to prepay Loans on such date is less than or equal to $1,000,000, in accordance with the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments preceding sentence. Any prepayment of the Revolving Credit Facility made a Loan pursuant to this Section 2.05(b), first, ) shall be applied ratably to accompanied by all accrued interest on the L/C Borrowings and the Swing Line Loansamount prepaid, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility together with any additional amounts required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable3.05.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 3 contracts
Samples: Bridge Facility Agreement (Post Holdings, Inc.), Bridge Facility Agreement (Bellring Brands, Inc.), Bridge Facility Agreement (Post Holdings, Inc.)
Mandatory. The Term Commitment of each Term Lender shall be automatically and permanently reduced to $0 (i) If any in the case of each Tranche A Term Loan Party or any Lender, upon the making of its Domestic Subsidiaries Disposes of any property such Tranche A Term Loan Lender’s Tranche A Term Loans pursuant to Section 7.05(l2.01(a)(i) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition)Existing Credit Agreement, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon in the incurrence or issuance by Holdings or any case of its Subsidiaries each Tranche B Term Loan Lender, upon the making of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued such Tranche B Term Loan Lender’s Tranche B Term Loans pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election 2.01 of the Borrowers Existing Credit Agreement (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (ia)(ii), (iii) or in the case of each Tranche C Term Loan Lender, upon the making of such Tranche C Term Loan Lender’s Tranche C Term Loans pursuant to Section 2.01(a)(iii) of the Existing Credit Agreement and (iv) in the case of this each Delayed Draw Term Loan Lender, upon the earlier of (x) the making of such Delayed Draw Term Loan Lender’s Delayed Draw Term Loans pursuant to Section 2.05(b), so long as no Default under Section 8.01(a2.01(a)(iv) or Section 8.01(f), or Event of Default the Existing Credit Agreement in the full aggregate amount of its Delayed Draw Term Loan Commitment and (y) the Delayed Draw Term Loan Commitment Termination Date. The Revolving Credit Commitments shall have occurred and be continuing, if, terminate on the Maturity Date for the Revolving Credit Facilities. On the date any date on which a prepayment would otherwise be of Revolving Credit Loans of any Class is required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b2.05(b)(vii), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum Commitments of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility Class shall be automatically and permanently reduced reduce by the Reduction Dollar Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon of 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be prepayment required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basismade.
Appears in 3 contracts
Samples: Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc), Credit Agreement (Clear Channel Communications Inc)
Mandatory. (i) If any Loan Relevant Party or makes any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) Asset Sale which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds promptly after receipt (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, improve or maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets, capital assets to be used in any line of business not prohibited by Section 7.07 or for other uses reasonably acceptable to the Administrative Agent, then on or before the 360th day after such Asset Sale to the extent that, within three such 360 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose; provided, that prepayment shall be required with such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such purpose) (3all such prepayments to be applied as set forth in clause (v) Business Days below).
(ii) Upon the issuance or incurrence by the Borrower or any Restricted Subsidiary of any Indebtedness (other than Indebtedness permitted under Section 7.02), and upon receipt thereof by of the Net Cash Proceeds thereof, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Person Net Cash Proceeds (such prepayments to be applied as set forth in clauses clause (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon any Extraordinary Receipt received by or paid to or for the incurrence or issuance by Holdings or any of its Subsidiaries account of any Indebtedness Relevant Party, and not otherwise included in clause (other than Indebtedness expressly permitted to be incurred i) or issued pursuant to (ii) of this Section 7.022.04(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of promptly upon receipt thereof by Holdings or such Subsidiary Relevant Party (such prepayments to be applied as set forth in clauses clause (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such caseAggregate Commitments, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b) unless after the prepayment in full of the Loans and L/C Borrowings, the Total Outstandings exceed the Aggregate Commitments then in effect.
(viiiv) Prepayments of the Revolving Credit Facility Loans made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Swingline Borrowings, third, shall be applied ratably to the outstanding Base Rate Loans (other than the Swingline Loans), fourth, shall be applied ratably to the outstanding Eurodollar Rate Loans, and, thirdand fifth, shall be used to Cash Collateralize the remaining L/C Obligations; provided that, in the case of prepayments of the Loans required pursuant to clause (i), (ii), or (iii) of this Section 2.04(b), such Cash Collateralization shall only be required if an Event of Default has occurred and is continuing,; and, in the case of prepayments of the Revolving Credit Facility Loans required pursuant to clause (i), (iii) ii), or (iviii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and and, if applicable, the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amountsfull, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii)Borrower. 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding ; provided, however, that if an Event of Default no longer exists, any other provisions of Cash Collateral required under this Section 2.05(b), 2.04(b) shall be released to the extent that the repatriation of an amount of such Net Cash Proceeds would Borrower. Prepayments made pursuant to this Section 2.04(b) shall not result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to permanent reduction of the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisCommitments.
Appears in 2 contracts
Samples: Credit Agreement (Antero Midstream Partners LP), Credit Agreement (Antero Resources Midstream LLC)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers The Company shall prepay the Committed Loans as hereinafter provided in an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received by any Loan Party from all Involuntary Dispositions with respect to Collateral within five (5) days of the date of receipt of such Net Cash Proceeds within three (3) Business Days of receipt thereof by with respect to such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Involuntary Disposition; provided, however, that, at the election with respect to an Involuntary Disposition of the Borrowers type described in clause (as notified by the Lead Borrower to the Administrative Agent on or prior to the date a) of such Disposition)definition, and so long as no Default shall have occurred and be continuingcontinuing and such casualty occurs prior to November 17, such Loan Party or such Subsidiary may reinvest 2026, all or any portion of such Net Cash Proceeds in assets used or useful in shall not be required to be so applied at the business election of the Company (as notified by the Company to the Administrative Agent) to the extent such Loan Parties so long as Party reinvests such Net Cash Proceeds in restoration or repair of the applicable loss, destruction or damage of such Collateral within 365 180 days after the receipt of such Net Cash Proceeds (or, if a commitment for such reinvestment has been made within such 180 day period, within 360 days after the receipt of such Net Cash Proceeds, either (x) ); provided that if such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds shall have not subject to such definitive agreement or been so reinvested shall be immediately applied to prepay the prepayment of the Loans as set forth in this Section 2.05(b)(i)Committed Loans.
(ii) [Intentionally Omitted]The Company shall prepay the Committed Loans in connection with a Property Substitution or Prepayment Release in the amounts, and to the extent required, pursuant to Section 2.19.
(iii) Upon If for any reason the incurrence or issuance by Holdings or Outstanding Amount of all Revolving Loans at any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)time exceeds the Aggregate Revolving Commitments then in effect, the Borrowers Company shall immediately prepay Revolving Loans in an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)excess.
(iv) Upon With respect to any Extraordinary Receipt received by or paid Mortgaged Property for which an “as completed” valuation was obtained in calculating the Initial Appraised Value, to or for the account extent a lesser appraised value is given to such Mortgaged Property in accordance with the definition of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b)“Initial Appraised Value”, the Borrowers Company shall prepay the Committed Loans in an aggregate principal amount of Loans equal to 10080% of such Net Cash Proceeds within three (3) Business Days of receipt thereof difference, as reasonably determined by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior and stated in writing to the date of receipt Company; provided that the amount of such insurance proceeds or condemnation awards)prepayment shall not exceed an amount such that, and so long as no Default shall have occurred and be continuing, after giving effect to such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business adjustment of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment Initial Appraised Value of the Loans as set forth applicable Mortgaged Property, the Aggregate Outstanding Loan Value (after giving effect to such prepayment amount, if any) does not exceed the Aggregate Loan Cap in this Section 2.05(b)(iv)effect at such time.
(v) Each prepayment of Loans pursuant to the foregoing provisions clauses (i) and (iv) of this Section 2.05(b) shall be applied, first, ratably to the remaining principal repayment installments of the Term Facility and any applicable Incremental Tranche Loans and, if applicable, the Incremental Term Loan (in each case, to including any payment due on the principal repayment installments thereof first, Maturity Date) in direct inverse order of maturity for the first four installmentsmaturity, and second, pro rata to the remaining installments outstanding Revolving Loans (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to with a corresponding reduction of the Revolving Credit Facility Commitments in such amount, regardless of the manner set forth in amount of Revolving Loans outstanding at such time). Each prepayment of Loans pursuant to clause (viiiii) of this Section 2.05(b).
(vi) Notwithstanding any shall be applied, first, ratably to the remaining principal repayment installments of the other provisions Term Loans and, if applicable, the Incremental Term Loan (in each case, including any payment due on the Maturity Date) on a pro rata basis, and second, to outstanding Revolving Loans (with a corresponding reduction of the Revolving Commitments in such amount, regardless of the amount of Revolving Loans outstanding at such time). Each prepayment of Loans pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay such excess Revolving Loans. All prepayments under this Section 2.05(b) shall be subject to Section 3.06, but otherwise without premium or penalty, and shall be accompanied by interest on the Loans but only so long as principal amount prepaid through the repatriation date of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisprepayment.
Appears in 2 contracts
Samples: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Mandatory. (i) [Reserved].
(ii) If any Loan Party (x) the Borrower or any of its Domestic Subsidiaries Disposes of Restricted Subsidiary receives Net Proceeds from any property Disposition by the Borrower or any Restricted Subsidiary pursuant to Section 7.05(l7.05(g) or (y) any Casualty Event occurs, which results in the realization or receipt by such Person the Borrower or Restricted Subsidiary of Net Cash Proceeds, the Borrowers Borrower shall offer to prepay (or cause to be offered to be prepaid) in accordance with clause (b)(vi) below, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or any Restricted Subsidiary of such Net Proceeds, an aggregate principal amount of Term Loans in an amount equal to 100% of such Net Cash Proceeds (such amount, the “Applicable Proceeds”); provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase or make a payment with respect to any Indebtedness outstanding at such time that is secured by a Lien on the Collateral ranking pari passu with the Lien securing the Term Loans pursuant to the terms of the documentation governing such Indebtedness (such Indebtedness required to be offered to be so repurchased or required to be paid, “Other Applicable Indebtedness”) with the Net Proceeds, then the Borrower may apply the Applicable 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) and the remaining Net Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (A) the portion of the Applicable Proceeds (but not the other Net Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable 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 Term Loans in accordance with the terms hereof, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within three ten (310) Business Days after the date of receipt thereof by such Person rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(such prepayments iii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not prohibited under Section 7.03), the Borrower shall cause to be applied as set forth offered to be prepaid in clauses accordance with clause (vb)(vi) and (viii) below); provided, however, that, at the election below an aggregate principal amount of the Borrowers (as notified by the Lead Borrower Term Loans in an amount equal to the Administrative Agent Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Restricted Subsidiary of such DispositionNet Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis to the Term Loans and Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, and so long as no Default shall have occurred and be continuingfurther, such Loan Party or such Subsidiary may reinvest all or any that (A) the portion of such Net Cash Proceeds in assets used or useful in allocated to the business of Other Applicable Indebtedness shall not exceed the Loan Parties so long as within 365 days after the receipt amount of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing Proceeds required to be allocated to the Administrative Agent; Other Applicable Indebtedness pursuant to the terms thereof, and provided furtherthe remaining amount, howeverif any, that any of such Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied allocated to the Term Loans in accordance with the terms hereof, and the amount of prepayment of the Term Loans as set forth in that would have otherwise been required pursuant to this Section 2.05(b)(i).
2.05(b)(iii) shall be reduced accordingly and (iiB) [Intentionally Omitted].
(iii) Upon to the incurrence extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)prepaid, the Borrowers declined amount shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly (and in any event within three ten (310) Business Days after the date of receipt thereof by Holdings or such Subsidiary (such prepayments to rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof. If the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be used pursuant to clause (viv) and (viii) below)of the definition thereof.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total aggregate Revolving Credit Outstandings Exposures at any time exceed exceeds the aggregate Revolving Credit Facility at such timeCommitments then in effect (including, in either such casefor the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the Borrowers Borrower shall immediately promptly prepay or cause to be promptly prepaid Revolving Credit Loans, Loans and Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of ; provided that the Revolving Credit Facility made Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii2.05(b)(iv) or (iv) of this Section 2.05(b), the amount remaining, if any, unless after the prepayment in full of all L/C Borrowings, the Revolving Credit Loans and Swing Line Loans and such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect.
(v) Except with respect to Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations incurred in full connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) which may be retained prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied as between series, Classes or tranches of Term Loans as directed by the Borrowers for use in Borrower (provided that (i) any prepayment of Term Loans with the ordinary course Net Proceeds of its business, and the Revolving Credit Facility Agreement Refinancing Indebtedness shall be automatically applied solely to each applicable Class of Refinanced Debt, (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and permanently reduced by the Reduction Amount as Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans and (iii) other than set forth in Section 2.06(b)(iiclauses (i) and Section 2.06(b)(iii). Upon or (ii) above (in the drawing case of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied clause (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(bii), solely to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such the Net Cash Proceeds so affected will not be required otherwise due to be applied to such Incremental Term Loans are applied to repay the other Term Loans), any prepayment of Term Loans but only so long pursuant to this Section 2.05(b) may not be directed to a later maturing series, Class or tranche without at least a pro rata prepayment of any related earlier maturing series, Class or tranche); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (ii) and (iii) of this Section 2.05(b) shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in direct order of maturity (without premium or penalty), unless otherwise directed by the Borrower; and (C) each such prepayment shall be paid to the Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (ii) and (iii) of this Section 2.05(b) at least three (3) Business Days prior to the date of such prepayment (or such shorter time as the repatriation Administrative Agent may agree). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and its Subsidiaries on a consolidated basisof such Appropriate Lender’s Pro Rata Share of the prepayment.
Appears in 2 contracts
Samples: Credit Agreement (Apria, Inc.), Credit Agreement (Apria, Inc.)
Mandatory. (i) If for any Loan Party reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect.
(ii) If the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to under Section 7.05(l7.05(g) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such use the Net Cash Proceeds within three (3) Business Days of receipt thereof by to eliminate any Borrowing Base Deficiency resulting from such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)sale; provided, however, provided that, at the election proceeds of the Borrowers (as notified any Disposition permitted by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default Section 7.05(g) shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such not constitute Net Cash Proceeds to the extent that (A) such proceeds are reinvested in assets replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Subsidiary of a kind then used or useful usable in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either applicable Person (xwith equal or greater aggregate Attributed Value) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after from the date of receipt thereof or (B) if the applicable Borrower or Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such binding definitive agreementproceeds as part of a like-kind exchange under Section 1031 of the Code, in each of cases (x) and (y) as certified the potential replacement properties or assets are identified by such Borrower or Subsidiary within 180 days from the Lead Borrower in writing date the ownership to the Administrative Agentsold assets is transferred to the buyer of such property and the proceeds from such property are reinvested to acquire such replacement properties or assets (with equal or greater aggregate Attributed Value) within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property; and provided furtherfurther that, however, that the proceeds of any Casualty Event shall not constitute Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment extent that such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Guarantor of a kind then used or usable in the business of the Loans as set forth in this Section 2.05(b)(i).
applicable Person (iiwith equal or greater aggregate Attributed Value) [Intentionally Omitted]within 180 days from the date of receipt thereof.
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)7.03, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility Total Outstandings made pursuant to this Section 2.05(b2.06(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l(other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Borrower (as notified pursuant to a notice in writing by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash ProceedsProceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)Debt Issuance, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (iii), (iii) or (iv) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified pursuant to a notice in writing by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or to within 545 days if the acquisition of assets used or useful in the business of the applicable Loan Parties or (y) enter Party has entered into a binding definitive agreement for contract to repair, replace or restore such replacement, repair property or acquisition and make such replacement, repair or acquisition shall have been completed reinvestment within 180 365 days after of such binding definitive agreementreceipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be appliedapplied in the following order, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for to the first following four installments(4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date, and thereafter, on a pro-rata basis among the remaining payments to be made on each remaining Term Loan Repayment Date, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (ivvii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f)and third, or Event to Cash Collateralize outstanding Letters of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepaymentCredit.
(viivi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii) ), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Mandatory. (i) If any Loan Party Within ten Business Days after receipt by the Borrower or any of its Domestic Subsidiaries Disposes Restricted Subsidiary of any property pursuant Net Available Proceeds from any Asset Sale or series of related Asset Sales permitted by Section 8.01(d), (k), (l) or (m), the Borrower shall either (1) prepay an aggregate principal amount of Loans or (2) commit to prepay, redeem, purchase, defease or otherwise satisfy other term Indebtedness of the Borrower to the extent permitted by Section 7.05(l8.05 (other than Section 8.05(i)) which results (and thereafter consummate such prepayment, redemption, purchase, defeasance or satisfaction within an additional 45 days), or any combination of the foregoing in an aggregate amount equal to 100% of such Net Available Proceeds (with any prepayments of the Loans to be applied as set forth in clauses (iv) and (vi) below); provided, that at the election of the Borrower (as notified by the Borrower to the Administrative Agent within ten Business Days following the date of receipt of such Net Available Proceeds of such Asset Sale), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the realization business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of receipt of such Person Net Available Proceeds of such Asset Sale or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Cash ProceedsAvailable Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest the Net Available Proceeds from such Asset Sale as set forth above) shall be immediately applied to the prepayment of the Loans or other term Indebtedness as set forth in this Section 2.04(b)(i).
(ii) Within five days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Debt Issuance or incurrence of Credit Agreement Refinancing Indebtedness, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Available Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below).
(iii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds of any Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Available Proceeds received therefrom (such prepayments to be applied as set forth in clauses (iv) and (vi) below); provided, however, that, with respect to any Net Available Proceeds realized with respect to any such Casualty Event, (A) at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to within ten days following the date of receipt of such DispositionNet Available Proceeds of such Casualty Event), the Borrower and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary its Restricted Subsidiaries may reinvest all or any portion of such Net Cash Available Proceeds in the replacement or restoration of any properties or assets in respect of which such Net Available Proceeds were paid or in assets that are used or useful in the business of the Loan Parties so long as Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days after following the date of receipt of such Net Cash Proceeds, either (x) Available Proceeds of such purchase shall have been consummated Casualty Event or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding definitive agreement for commitment to use such purchase shall have been entered into and such purchase shall have been consummated Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent365-day period; and provided further, however, that any Net Cash Available Proceeds not subject to such definitive agreement legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest such Net Available Proceeds as set forth above) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below2.04(b)(iii); providedand provided further, however, that with respect to any proceeds such replacement or restoration of insurance property or condemnation awards assets constituting Collateral, the Borrower shall take all actions specified in Section 6.09 in order that such property or asset shall constitute Collateral upon the acquisition or construction thereof and (or payments B) if the Borrower and its Restricted Subsidiaries are required to apply any such Net Available Proceeds under the applicable Master Lease to any other purpose, such Net Available Proceeds may be applied to such purpose in lieu thereof), at of making the election prepayment of the Borrowers (as notified Loans required by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awardsthis Section 2.04(b)(iii), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds Net Available Proceeds not so applied subject to any such requirements under the applicable Master Lease, or that are subsequently released from such use, shall be immediately applied to the prepayment of the Loans as otherwise set forth in this Section 2.05(b)(iv2.04(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) shall be appliedapplied first (a) ratably to each Class of Term Loans (or, firstin the case of New Term Loans, to Extended Term Loans and Other Term Loans, on a less than pro rata basis if elected in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) and (b) (x) for the Term Facility and any applicable Incremental Tranche and, in each caseLoans, to the principal repayment installments thereof first, in direct forward order of maturity and (y) for any other Class of Term Loans, as set forth for such Class in the first four installmentsapplicable Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement and second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) below; provided that, notwithstanding the foregoing, each prepayment pursuant to Section 2.04(b)(ii) above with the proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Refinanced Debt. Any prepayment of the Term Facility on or prior to the first anniversary of the Closing Date pursuant to Section 2.04(b)(ii) in connection with a Repricing Event described in clause (i) of this the definition thereof shall be accompanied by the payment of the fee described in Section 2.05(b2.08(c).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; , and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause clauses (i), (iiiii) or (iviii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its their business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Vici Properties Inc.), Credit Agreement (Vici Properties Inc.)
Mandatory. (i) If The Borrowers shall, on the applicable Prepayment Date with respect to Net Cash Proceeds received by any Loan Party from (A) the sale, lease, transfer or other disposition including any and all involuntary dispositions, whether by condemnation, casualty loss or otherwise, of any assets of any Loan Party or any of its Domestic Subsidiaries Disposes (other than (w) any sale, lease, transfer or other disposition of assets referred to in clause (i), (ii), (iii) or (iv) of the definition of Certain Permitted Dispositions and (x) any property pursuant to Section 7.05(l) which results in sale, lease transfer or other disposition of assets the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds which are reinvested in assets used or useful in the business operation of the Loan Parties so long as business within 365 days after the 18 months of receipt of such Net Cash Proceedsproceeds), either (xB) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness Debt (other than Indebtedness expressly Debt permitted to be incurred or issued pursuant to Section 7.025.02(b), but including the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days from the issuance of receipt thereof by Holdings or Senior Notes in excess of the amount of such Subsidiary (such prepayments Net Cash Proceeds required to be applied as set forth in clauses (v) repay the Bridge Loan Facility), and (viiiC) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, Subsidiaries and not otherwise included in clause (iA) or (B) above (other than any Extraordinary Receipts which are reinvested in assets used in the operation of this Section 2.05(bthe business within 18 months of receipt of such proceeds), the Borrowers shall prepay an aggregate principal amount of Loans the Term Loan Advances comprising part of the same Term Loan (with application to be made in accordance with clause (ii) below, in an aggregate amount equal to 100% the amount of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); Proceeds, provided, however, that with respect to any proceeds payment referred to in clause (A) above, the Net Cash Proceeds from the sale of insurance or condemnation awards Collateral (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans other than as set forth in this Section 2.05(b)(iv).
clauses (v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installmenti), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (iii), (iii) or (iv) of this Section 2.05(b), so long as no Default the definition of Certain Permitted Dispositions) in which the lenders under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such timehave a prior lien shall first be applied to repay advances, in either such caseif any, under the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excessFacility.
(viiiii) Prepayments All prepayments under this subsection (b) shall be made together with accrued interest thereof to the date of such prepayment on the Revolving Credit Facility made principal amount prepaid, together with any amounts owing pursuant to this Section 2.05(b), first, 8.04 and shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the each remaining L/C Obligations; and, in the case of prepayments scheduled repayment of the Revolving Credit Facility Term Loan Advances. If any payment of Eurodollar Rate Advances otherwise required pursuant to clause (i), (iii) or (iv) of be made under this Section 2.05(b)) would be made on a day other than the last day of the applicable Interest Period thereon, each Borrower may direct the Administrative Agent to (and if so directed, the Administrative Agent shall) deposit such payment in an account maintained with the Administrative Agent until the last day of the applicable Interest Period at which time the Administrative Agent shall apply the amount remaining, if any, after of such payment to the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amountsTerm Loan Advances; provided, cash collateralization amounts and remaining amount beinghowever, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility that such Term Loan Advances shall be automatically and permanently reduced by the Reduction Amount continue to bear interest as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon 2.06 until the drawing last day 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableapplicable Interest Period therefor.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Term Loan Agreement (BMCA Acquisition Sub Inc.), Term Loan Agreement (Building Materials Manufacturing Corp)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l(other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Borrower (as notified pursuant to a notice in writing by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash ProceedsProceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)Debt Issuance, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (iii), (iii) or (iv) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified pursuant to a notice in writing by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or to within 545 days if the acquisition of assets used or useful in the business of the applicable Loan Parties or (y) enter Party has entered into a binding definitive agreement for contract to repair, replace or restore such replacement, repair property or acquisition and make such replacement, repair or acquisition shall have been completed reinvestment within 180 365 days after of such binding definitive agreementreceipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be appliedapplied in the following order, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for to the first following four installments(4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans, secondthe Term A-1 Loans and the Additional Term A-2 Loans), pro rata and thereafter, to the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis amongboth (a) as amongst the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis, the Term A-1 Loans and the Term A-2 Loans and (b) as amongst the remaining principal repayment installments (excluding the Maturity Date installmentof eachthe Term LoanLoans), third, to the Maturity Date installment and fourthsecond, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (ivvii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f)and third, or Event to Cash Collateralize outstanding Letters of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepaymentCredit.
(viivi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii) ), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Mandatory. (i) If (1) Parent or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.04 (excluding dispositions permitted by Section 7.04(m), (s), (u) and (v)) or (2) any Casualty Event occurs, that results in the realization or receipt by Parent or such Restricted Subsidiary of Net Proceeds in excess of $10 million, the Borrowers shall cause to be prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Parent, such Borrower or Restricted Subsidiary of such Net Proceeds an aggregate amount of Term Loans in an amount equal to 100% of all Net Proceeds received; provided, that if at the time that any such prepayment would be required, the Borrowers (or any Restricted Subsidiary) are required to offer to repurchase Permitted Pari Passu Secured Refinancing Debt (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 the net proceeds of such Disposition or Casualty Event (such Permitted Pari Passu Secured Refinancing Debt (or any Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers (or any Restricted Subsidiary) may apply such Net 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 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 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 2.05(b)(i) 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 any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(i) with respect to such portion of such Net Proceeds that Parent or the relevant Restricted Subsidiary shall have reinvested or entered into a binding commitment to reinvest or otherwise determined to reinvest (as set forth in a notice from Parent to the Administrative Agent to be delivered on or prior to the date which is ten (10) Business Days after the date of receipt of the applicable Net Proceeds), in each case in accordance with the definition of “Net Proceeds” and within the timeframe contemplated thereby.
(ii) If any Loan Party or any Restricted Subsidiary of its Domestic Subsidiaries Disposes of a Loan Party incurs or issues any property pursuant to Section 7.05(l) which results Indebtedness after the Closing Date (other than, in the realization by such Person case of Net Cash ProceedsParent or any Restricted Subsidiary, Indebtedness not prohibited under Section 7.02), including Credit Agreement Refinancing Indebtedness, the Borrowers shall prepay cause to be prepaid an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of which is five (5) Business Days after the receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, by such Loan Party or such Restricted Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Net Proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total aggregate Revolving Credit Outstandings Exposures at any time exceed exceeds the aggregate Revolving Credit Facility at such time, Commitments then in either such caseeffect, the Borrowers shall immediately promptly prepay or cause to be promptly prepaid Revolving Credit Loans, Loans and Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiiv) Prepayments Each prepayment of the Revolving Credit Facility made Term Loans pursuant to this Section 2.05(b)) shall be paid to the Lenders in accordance with their respective Pro Rata Shares (provided, first, that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied ratably solely to the L/C Borrowings and the Swing Line Loanseach applicable Class (or Classes) of Refinanced Debt), second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant subject to clause (i), (iii) or (ivv) of this Section 2.05(b), .
(v) Parent shall notify the amount remaining, if any, after the Administrative Agent in writing of any mandatory prepayment in full of all Loans (and/or Cash Collateralization of L/C BorrowingsObligations) required to be made pursuant to clauses (i) through (iii) of this Section 2.05(b) promptly, Swing Line Loans and Revolving Credit Loans outstanding at in no event more than three (3) Business Days, following the event giving rise to such time and mandatory prepayment. Each such notice shall specify the Cash Collateralization of the remaining L/C Obligations in full (the sum date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of Parent’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction AmountDeclined Proceeds”) of Term Loans required to be made pursuant to clauses (i) and (ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and Parent no later than 5:00 p.m. one (1) Business Day prior to the proposed date of such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds remaining thereafter may be retained by the Borrowers and/or applied for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced any purpose not otherwise prohibited by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablethis Agreement.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)
Mandatory. (i) If At any time in which any Incremental Term Facility Loan remains outstanding, if any Loan Party or any of its Domestic Subsidiaries (other than Agway Subsidiaries, Inactive Subsidiaries or Excluded Subsidiaries) Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c), (d), (e) or (h) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (viiiv) below); provided, however, thatthat (A) the first $25,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(i), and (B) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i) in excess of the Exempt Proceeds, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days 12 months after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that (A) any Net Cash Proceeds not subject to such definitive agreement or so reinvested within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i), and (B) if a Default has occurred and is continuing at any time that the Borrower or a Subsidiary Guarantor receives or is holding any Net Cash Proceeds which have not yet been reinvested, such Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or At any of its Subsidiaries of time in which any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)Incremental Term Loan remains outstanding, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries (other than Agway Subsidiaries, Excluded Subsidiaries, or Inactive Subsidiaries), and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.2.05
Appears in 2 contracts
Samples: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Mandatory. (i) If The Borrowers shall, on the Business Day following the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsSubsidiaries, the Borrowers shall prepay an aggregate principal amount of Loans the Advances equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Proceeds; provided, however, that, at the election of that (A) the Borrowers (as notified by shall not be required to make any prepayment hereunder with Net Cash Proceeds unless and until the Lead Borrower to the Administrative Agent on or prior to the date aggregate amount of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used (excluding Net Cash Proceeds from Extraordinary Receipts) that have not theretofore been applied to prepay the Advances pursuant to this Section 2.07(b)(i) exceeds $5,000,000 (at such time the Borrowers shall be required to make a prepayment hereunder with all such excess Net Cash Proceeds except to the extent such prepayment is not required under clause (B), (C), (D) or useful in (E) of this proviso), (B) to the business extent the aggregate amount of all Net Cash Proceeds (excluding Net Cash Proceeds from Extraordinary Receipts) received by the Loan Parties so long as within 365 days and their Subsidiaries shall exceed $10,000,000, only 75% of such excess amount of Net Cash Proceeds received shall be required to be applied to prepayment hereunder, (C) in the case of Net Cash Proceeds that are Extraordinary Receipts in respect of any casualty or condemnation event (“Extraordinary Receipts Proceeds”), to the extent such Extraordinary Receipts Proceeds are used to repair, restore or replace the assets that are the subject of such event in substantially the same location promptly after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) Extraordinary Receipts Proceeds by a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder, (D) in the case of Extraordinary Receipts Proceeds received with respect to a casualty or condemnation event in respect of Inventory, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder and not otherwise included (E) in the case of Extraordinary Receipts Proceeds on account of the claims subject to the Xxxxxxx Fire Settlement, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder to the extent that such Extraordinary Receipts Proceeds shall be used to pay or reimburse the Loan Parties and their Subsidiaries for funding the settlement fund described in the definition of “Xxxxxxx Fire Settlement” and/or for legal fees and expenses incurred in connection therewith. Each such prepayment shall be applied first ratably to the outstanding Revolving Credit Facility as set forth in clause (iiv) of this below, and second, if required under Section 2.05(b2.03(g), deposited in the L/C Cash Collateral Account, in each case without any reduction of any Commitments.
(ii) The Borrowers shall prepay shall, on each Business Day, if applicable, prepay, in each case without any reduction of any Commitments, an aggregate principal amount of Loans the Revolving Credit Advances, the Letter of Credit Advances or the Swing Line Advances or deposit an amount in the L/C Collateral Account in an amount equal to 100% the amount by which (A) the sum of such Net Cash Proceeds within three (3x) Business Days the Revolving Credit Advances, the Letter of receipt thereof by such Loan Party or such Subsidiary Credit Advances and the Swing Line Advances then outstanding plus (such prepayments to be applied as set forth in clauses y) the aggregate Available Amount of all Letters of Credit then outstanding exceeds (vB) the lesser of (x) the sum of the aggregate Revolving Credit Commitments and (viiiy) below); providedthe Borrowing Base.
(iii) The Borrowers shall, howeveron each Business Day, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof)if applicable, at the election of the Borrowers (as notified by the Lead Borrower pay to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property for deposit in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in such L/C Borrowings) in an Cash Collateral Account to equal the amount by which the aggregate amount equal to Available Amount of all Letters of Credit then outstanding exceeds the Letter of Credit Sublimit on such excessBusiness Day.
(viiiiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, clauses (i) and (ii) above and (v) below shall be first applied ratably to prepay Letter of Credit Advances and the Swing Line Advances then outstanding, if any, until such Advances are paid in full, second applied ratably to prepay Revolving Credit Advances then outstanding, if any, until such Advances are paid in full and third, if required under Section 2.03(g), deposited in the L/C Borrowings and the Swing Line LoansCash Collateral Account, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligationsin each case without any reduction of any Commitments; and, in the case of prepayments any prepayment of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b)above, the amount remaining, if any, from the Revolving Credit Facility’s ratable portion of such Net Cash Proceeds after the prepayment in full of all L/C Borrowingsthe Letter of Credit Advances, the Swing Line Loans Advances and the Revolving Credit Loans Advances then outstanding at such time and the any required Cash Collateralization of the remaining L/C Obligations in full (the sum Letters of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) Credit then outstanding may be retained by the Borrowers for use in the ordinary course of its business, their business and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii)operations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the for which funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse are on deposit in the L/C Issuer Cash Collateral Account, such funds shall be applied to reimburse the applicable Issuing Bank or the Revolving Credit Lenders, as applicable.
(ixv) Notwithstanding If at the end of any Business Day the amount of unrestricted cash and Cash Equivalents held by the Loan Parties (other provisions than cash and Cash Equivalents held in (x) collection, lockbox and disbursement accounts in the ordinary course of collections and disbursements, and (y) payroll accounts, trust accounts, escrow accounts or security deposits established pursuant to statutory obligations or for the payment of taxes or holding funds in trust for third parties not affiliated with the Company in the ordinary course of business or in connection with acquisitions, investments or dispositions permitted under this Section 2.05(bAgreement, deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, and reserve accounts expressly contemplated under the Plan and/or the Disclosure Statement (including, but not limited to reserves expressly contemplated under the Plan and/or Disclosure Statement for diacetyl claims and environmental claims), and escrow accounts established pursuant to contractual obligations to third parties not affiliated with the Company for casualty payments and insurance proceeds) shall exceed $20 million in the aggregate, mandatory prepayments of the Revolving Credit Advances (and Cash Collateralization of outstanding Letters of Credit) shall be required on the following Business Day in an amount necessary to eliminate such excess (net of the Loan Parties’ permitted known cash uses (for example, Senior Note and Term Facility interest payments and trade accounts payable) on the date of such prepayment and for the 2 Business Days thereafter).
(vi) All prepayments under this subsection (b) shall be made together with accrued interest to the extent that the repatriation of an amount date of such Net Cash Proceeds would result in material adverse tax consequences prepayment on the principal amount prepaid and any additional amounts required pursuant to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisSection 10.04(d).
Appears in 2 contracts
Samples: Senior Secured Revolving Facility Credit Agreement (Chemtura CORP), Senior Secured Revolving Facility Credit Agreement (Chemtura CORP)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to or assets (other than any Disposition of any property permitted by Section 7.05(l7.05(a) through Section 7.05(i)) which results in the realization by such Person of Net Cash ProceedsProceeds or such Loan Party receives Net Cash Proceeds from insurance or condemnation proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three in excess of $250,000 per occurrence or $1,000,000 (3in the aggregate for such Net Cash Proceeds received from and after the Restatement Effective Date) Business Days of upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such DispositionDisposition or receipt of insurance or condemnation proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 180 days (or within 365 days if the applicable Loan Party has entered into a binding contract for reinvestment within 180 days of receipt of such proceeds) after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) case, as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any such 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries Loan Party of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings or such Subsidiary Loan Party (such prepayments to be applied as set forth in clauses (v) and (viiivii) below).
(iviii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic SubsidiariesParty, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom in excess of $250,000 per occurrence or $1,000,000 (in the aggregate for such Net Cash Proceeds within three (3received from and after the Restatement Effective Date) Business Days of immediately upon receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that that, with respect to any proceeds of insurance or condemnation awards (or payments Net Cash Proceeds described in lieu thereofthis Section 2.05(b)(iii), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awardsNet Cash Proceeds), and so long as no Event of Default shall have occurred and be continuing, such Loan Party may reinvest all or such Subsidiary may apply within 365 days after the receipt any portion of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property Net Cash Proceeds in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of so long as within 180 days (or within 365 days if the applicable Loan Parties or (y) enter Party has entered into a binding definitive agreement contract for reinvestment within 180 days of receipt of such replacementproceeds) after the receipt of such Net Cash Proceeds, repair or acquisition and such replacement, repair or acquisition purchase shall have been completed within 180 days after such binding definitive agreementconsummated (in each case, as certified by the Borrower in writing to the Administrative Agent); and provided, provided further, however, that any cash proceeds such Net Cash Proceeds not subject to such definitive agreement or so applied reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(iii).
(iv) [Intentionally omitted].
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility (and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, on a pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment basis) and fourth, second to the Revolving Credit Facility in the manner set forth in clause (viiivii) of this Section 2.05(b) (without a reduction of the aggregate commitments thereunder). Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be (A) accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05 and (B) paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixviii) Notwithstanding Amounts to be applied as provided in this Section 2.05(b) to the prepayment of Loans of any other provisions Class shall be applied first to reduce outstanding Base Rate Loans of such Class. Any amounts remaining after each such application shall, at the option of the Borrower, be applied to prepay Eurodollar Rate Loans of such Class immediately and/or shall be deposited in a separate Prepayment Account for the Loans of such Class. The Administrative Agent shall apply any cash deposited in the Prepayment Account for any Class of Loans to prepay Eurodollar Rate Loans of such Class on the last day of their respective Interest Periods (or, at the direction of the Borrower, on any earlier date) until all outstanding Loans of such Class have been prepaid or until all the allocable cash on deposit in the Prepayment Account for such Class has been exhausted. For purposes of this Agreement, the term “Prepayment Account” for any Class of Loans shall mean an account established by the Borrower with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this Section 2.05(b). The Prepayment Accounts shall not bear interest. If the maturity of the Loans has been accelerated pursuant Section 8.02, the Administrative Agent may, in its sole discretion, apply such funds to satisfy any of the Obligations in accordance with Section 8.03. The Borrower hereby pledges and assigns to the extent that Administrative Agent, for the repatriation benefit of an amount of such Net Cash Proceeds would result in material adverse tax consequences the Secured Parties and to Holdings and its Subsidiaries on a consolidated basissecure the Obligations, an amount equal to the portion of such Net Cash Proceeds each Prepayment Account so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisestablished.
Appears in 2 contracts
Samples: Amendment No. 2 and Reaffirmation of Collateral Documents (Einstein Noah Restaurant Group Inc), Credit Agreement (Einstein Noah Restaurant Group Inc)
Mandatory. (i) If any Loan Party the US Borrower or any of its Domestic Subsidiaries Restricted Subsidiary Disposes of any property pursuant to Section 7.05(l7.05(f), 7.05(g) or 7.05(h) or any property that is not permitted to be Disposed of by the Loan Documents, in each case, which Disposition results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds within three (3or if less, the Outstanding Amount of the Term Loans) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers US Borrower (as notified by the Lead US Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the US Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or operating assets, useful in the business of the Loan Parties US Borrower and its Restricted Subsidiaries so long as within 365 270 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead US Borrower in writing to the Administrative Agent) (provided, that a binding commitment entered into within such 270 day period with respect to such purchase shall be treated as a permitted application of such Net Cash Proceeds so long as such Net Cash Proceeds shall have been applied to such purchase within 365 days after receipt of the relevant Net Cash Proceeds); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted]Each prepayment of Term Loans pursuant to Section 2.05(b)(i) shall be applied ratably to the Term Aggregate Commitments.
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the lesser of (A) the Revolving Credit Facility Aggregate Commitments and (B) the Revolving Credit Availability Amount at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant . The Administrative Agent may, at any time and from time to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, time after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum initial deposit of such prepayment amountsCash Collateral, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit request that has been Cash Collateralized, the funds held as additional Cash Collateral shall be applied (without any further action by or notice provided in order to or from protect against the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableresults of exchange rate fluctuations.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (USD Partners LP)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of Loans equal to the Excess Cash Flow Percentage of Excess Cash Flow for the applicable Excess Cash Flow Period less the aggregate principal amount of all Loans prepaid pursuant to Section 2.05(a)(i) (provided that any such payment of the Revolving Credit Loans was accompanied by a permanent reduction in the Revolving Credit Commitment), such prepayments to be applied as set forth in clauses (v) and (vii) below.
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l(other than any Disposition of any property permitted by Sections 7.05(a), 7.05(b) or 7.05(c)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Borrower (as notified pursuant to a notice in writing by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash ProceedsProceeds (or within 545 days if the applicable Loan Party has entered into a binding contract for reinvestment of such Net Cash Proceeds within 365 days of such Disposition), either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested in each case as set forth herein above, shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)Debt Issuance, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (iii), (iii) or (iv) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified pursuant to a notice in writing by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received (or to within 545 days if the acquisition of assets used or useful in the business of the applicable Loan Parties or (y) enter Party has entered into a binding definitive agreement for contract to repair, replace or restore such replacement, repair property or acquisition and make such replacement, repair or acquisition shall have been completed reinvestment within 180 365 days after of such binding definitive agreementreceipt); and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be appliedapplied in the following order, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for to the first following four installments(4) scheduled payments to be made on each Term Loan Repayment Date arising after the applicable payment date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans), and thereafter, on a pro-rata basis amongto the remaining payments to be made on each remaining Term Loan Repayment Date (on a pro-rata basis among the Closing Date Term Loans and the Additional Term Loans and after such application on a pro-rata basis amongst the remaining principal repayment installments of each Term Loan), second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (ivvii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f)and third, or Event to Cash Collateralize outstanding Letters of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepaymentCredit.
(viivi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii) ), or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Bojangles', Inc.), Credit Agreement (Bojangles', Inc.)
Mandatory. (i) If At any time in which any Incremental Term Facility Loan remains outstanding, if any Loan Party or any of its Domestic Subsidiaries (other than Agway Subsidiaries or Inactive Subsidiaries) Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c), (d), (e) or (h) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (viiiv) below); provided, however, thatthat (A) the first $15,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(i), and (B) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i) in excess of the Exempt Proceeds, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days 12 months after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that (A) any Net Cash Proceeds not subject to such definitive agreement or so reinvested within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i), and (B) if a Default has occurred and is continuing at any time that a Borrower or a Subsidiary Guarantor receives or is holding any Net Cash Proceeds which have not yet been reinvested, such Net Cash Proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or At any of its Subsidiaries of time in which any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)Incremental Term Loan remains outstanding, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries (other than Agway Subsidiaries or Inactive Subsidiaries), and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.2.05
Appears in 2 contracts
Samples: Credit Agreement (Suburban Propane Partners Lp), Credit Agreement (Suburban Propane Partners Lp)
Mandatory. (i) (A) If (1) any Loan Party Prepayment Asset Sale occurs or (2) any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person any Restricted Company of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such DispositionNet Cash Proceeds an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans on a pro rata basis in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, and so long as no Default on or prior to such date, the Borrower shall have occurred and be continuing, such Loan Party or such Subsidiary may given written notice to the Administrative Agent of its intention to reinvest all or any a portion of such Net Cash Proceeds in assets used or useful in the business accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into Default has occurred and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (xis then continuing) and (y) as certified 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 Lead Borrower in writing Collateral ranking pari passu with the Lien securing the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to the Administrative Agent; and provided further, however, that any terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower, at its election, may apply the Applicable Asset Sale 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) and the remaining Net Cash Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (x) the portion of the Applicable Asset Sale Proceeds (but not subject the other Net Cash Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Asset Sale Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such definitive agreement or so reinvested Net Cash Proceeds shall be immediately applied allocated to the Initial Term Loans and the 2022 Incremental Term B- 2 Loans on a pro rata basis in accordance with the terms hereof to the prepayment of the Initial Term Loans and the 2022 Incremental Term B-2 Loans, as set forth in applicable, and the amount of prepayment of the Initial Term Loans and the 2022 Incremental Term B-2 Loans that would have otherwise been required pursuant to this Section 2.05(b)(i).
2.06(b)(i) shall be reduced accordingly and (iiy) [Intentionally Omitted].
(iii) Upon to the incurrence extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)prepaid, the Borrowers declined amount shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly (and in any event within three ten (310) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to after the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (xrejection) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay the Initial Term Loans and the 2022 Incremental Term B-2 Loans on such date is less than or equal to $1,000,000, a pro rata basis in accordance with the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligationsterms hereof; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.91
Appears in 2 contracts
Samples: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Mandatory. (i) If Upon any Loan Party Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Domestic Subject Subsidiaries Disposes in respect of any its property pursuant to Section 7.05(l) which results in or assets, after the realization by such Person first $20,000,000 of Net Cash ProceedsProceeds relating to any Extraordinary Receipt and thereafter any amount in excess of $3,000,000 for any one event or series of related events, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days after the date of receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments subject to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account provisions of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below2.05(b)(iv); provided, however, provided that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after (A) if the receipt of such cash proceeds either (x) Borrower intends to replace or repair reinvest the equipment, fixed assets or real property Net Cash Proceeds thereof in respect of which such cash proceeds were received or to the acquisition of capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the Loan Parties assets or property in respect of which the Extraordinary Receipt was received, it shall deliver written notice of such intention to the Administrative Agent on or prior to the fifth Business Day immediately following the date on which Borrower receives such Net Cash Proceeds, (yB) enter into a binding definitive agreement for if the Borrower shall have delivered such replacementnotice, the Net Cash Proceeds thereof may be reinvested so long as within 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or unreasonably delayed, and is substantially completed within 24 months after the date of receipt of such Net Cash Proceeds, and (C) on the date the Borrower consummates such restoration, repair or acquisition and replacement or purchase, it shall deliver a certificate of a Responsible Officer to the Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such replacement, repair or acquisition shall Net Cash Proceeds have been completed within 180 days after such binding definitive agreementreinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(i); and provided, further, however, provided further that any cash proceeds Net Cash Proceeds not so applied reinvested at the end of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)2.05.
(vii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, ratably to the Term A Facility and any applicable Incremental Tranche and, in each caseif applicable, the Incremental Term Facilities and to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, on a pro rata to the remaining installments (excluding the Maturity Date installment)basis and, third, to the Maturity Date installment and fourththereafter, to the Revolving Credit Facility in the manner set forth in clause (viiiiii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) of this Section 2.05(b), first, shall be applied ratably to the prepay L/C Borrowings and the Swing Line Loansoutstanding at such time until all such L/C Borrowings are paid in full, second, shall be applied ratably to the prepay Swing Line Loans outstanding Revolving Credit Loansat such time until all such Swing Line Loans are paid in full, and, third, shall be used applied to Cash Collateralize the remaining L/C Obligationsprepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Loans and L/C Borrowings, Swing Line Loans and Revolving Credit Loans Borrowings outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amountstime, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that Credit, which has been Cash Collateralized, the such funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixiv) Notwithstanding any other the provisions of this Section 2.05(b2.05(b)(i), to the extent that the repatriation of an amount of such Net Cash Proceeds if any mandatory prepayments under Section 2.05(b)(i) would result in material adverse tax consequences to Holdings and its Subsidiaries on the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a consolidated basis, an amount equal result of any such mandatory prepayment of Eurodollar Loans prior to the portion last day of an Interest Period, so long as no Default has occurred and is continuing, the Borrower may defer the making of such Net Cash Proceeds so affected will not be mandatory prepayment until the earlier of (A) the last day of such Interest Period and (B) the date thirty days after the date on which such mandatory prepayment would otherwise have been required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basismade.
Appears in 2 contracts
Samples: Credit Agreement (Alliant Techsystems Inc), Credit Agreement (Alliant Techsystems Inc)
Mandatory. (i) If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility then in effect, the Borrowers shall promptly prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Company shall not be required to Cash Collateralize the L/C Obligations pursuant hereto unless after the prepayment in full of the Loans the Total Revolving Outstandings exceed the Revolving Facility then in effect. Such Cash Collateral shall be subject to reduction in accordance with Section 2.16.
(ii) If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Global Revolving Credit Facility then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Global Revolving Credit Facility then in effect.
(iii) If, within five (5) Business Days following any Disposition of property by any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant permitted by Section 7.05(f), Consolidated Leverage Ratio, after giving pro forma effect to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsDisposition, is greater than 4.00 to 1.00, the Borrowers shall prepay an aggregate principal amount of Loans equal to 10075% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided, however, provided that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Specified Event of Default shall have occurred and be continuing, such Loan Party Net Cash Proceeds shall not be required to be so applied at the election of the Company (as notified by the Company to the Administrative Agent) to the extent the Company or such Subsidiary may reinvest any of the Subsidiaries reinvests all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 three hundred sixty four (364) days after the receipt of such Net Cash ProceedsProceeds (or, either (x) such purchase shall have been consummated to the extent that the Company or (y) applicable Subsidiary enters into a binding definitive agreement for commitment to reinvest such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds within three hundred sixty four (364) days, within one hundred eighty (180) days after the expiration of such initial three hundred sixty four (364) day reinvestment period); provided that if such Net Cash Proceeds shall have not subject to such definitive agreement or been so reinvested within the applicable timeframe above, such Net Cash Proceeds shall be immediately promptly applied to the prepayment of prepay the Loans as set forth in this Section 2.05(b)(i).
clause (ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiiiv) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such All prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of contemplated by this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, applied to the principal repayment installments thereof first, of the Term Loans in direct order of maturity maturity. The amount remaining, if any, after the prepayment in full of all Term Loans, in full may be retained by Loan Parties for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility use in the manner set forth in clause (viii) ordinary course of this Section 2.05(b)their business.
(viv) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Specified Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,00010,000,000, the Borrowers shall not be obligated to make Company may defer such prepayment.
(vii) If for any reason prepayment until the Total Revolving Credit Outstandings at any time exceed first date on which the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Net Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility Proceeds or other amounts otherwise required pursuant to under clause (i), (iii) or (iv) of this Section 2.05(b), ) to be applied to prepay Loans exceeds $10,000,000. During such deferral period the Company may apply all or any part of such aggregate amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line to prepay Revolving Loans and Revolving Credit Loans outstanding at such time and may, subject to the Cash Collateralization fulfillment of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as applicable conditions set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash CollateralizedArticle IV, the funds held as Cash Collateral shall be applied reborrow such amounts (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b)which amounts, to the extent that the repatriation of an amount of such originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds when so affected will not be reborrowed) for application as required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.by this Section 2.05
Appears in 2 contracts
Samples: Credit Agreement (Hain Celestial Group Inc), Credit Agreement (Hain Celestial Group Inc)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l7.05(g) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Term Loans (if any) equal to 100% of such Net Cash Proceeds within three (3) Business Days of promptly upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiii) below); provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to promptly following the date consummation of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest use all or any portion of such Net Cash Proceeds in to acquire, maintain, develop, construct, improve, upgrade or repair assets used or useful in the business of the Loan Parties Borrower and its Subsidiaries or to make Acquisitions permitted under Section 7.02(f), so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase use shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent) (provided that to the extent such use has not consummated on or before the end of such 365-day period, if the Borrower certifies to the Administrative Agent that the Loan Party has entered into a binding commitment to use all or a portion of such Net Cash Proceeds for such reinvestment, such 365-day period shall be extended to 545 days from the date of the consummation of the applicable Disposition for all or such portion, as the case may be, of such Net Cash Proceeds); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested used shall be immediately promptly applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any Each prepayment of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Term Loans pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.05(b)(i) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, applied to the principal repayment installments thereof firstof the Term Loans on a pro-rata basis. Subject to Section 2.16, in direct order of maturity for the first four installments, second, pro rata such prepayments shall be paid to the remaining installments (excluding Lenders in accordance with their respective Applicable Percentages in respect of the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)Term Loan Facility.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Aggregate Revolving Credit Facility Commitments at such time, in either such casethen within four Business Days after receipt of notice thereof from the Administrative Agent, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and and/or L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iii) unless, after the prepayment of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments at such time.
(viiiiv) Prepayments If the Outstanding Amount of all Revolving Credit Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within four Business Days after receipt of notice thereof from the Administrative Agent, the Borrower shall prepay Revolving Credit Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(v) Except as otherwise provided in Section 2.16, prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, and second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Cabot Microelectronics Corp), Credit Agreement (Cabot Microelectronics Corp)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant Subject to Section 7.05(l2.05(b)(ii) which below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by such Person any member of the Restricted Group of Net Cash ProceedsAvailable Cash, the Borrowers relevant Borrower shall prepay cause to be prepaid on the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this clause (i), on the date such reinvestment period expires), subject to clause (b)(vii) of this Section 2.05, an aggregate principal amount of Loans equal in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to 100% of ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash Proceeds within three (3) Business Days for purposes of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) belowdetermining compliance); provided, however, that, provided that at the election option of the Borrowers, the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest use all or any portion of such the Net Available Cash Proceeds received in assets used or useful connection with an Asset Disposition in the business of the Loan Parties so long as Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 365 days after the receipt 12 months of such Net Cash Proceedsreceipt, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase proceeds shall have been consummated not be required to be applied to prepay the Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days after from the end of such binding definitive agreement12 month period (the “Reinvestment End Date”), in each of cases then such remaining portion shall be required to prepay the Loans (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agentextent otherwise required by this clause (b)(i)), as of the date or such termination; and provided furtherfurther that, however, if at the time that any such prepayment would be required, any Borrower (or any Restricted Subsidiary) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available 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 proceeds allocated to the Other Applicable Indebtedness shall not subject 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 definitive agreement or so reinvested net proceeds shall be immediately applied allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans as set forth in and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i)) 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 any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; and provided further that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) [Intentionally Omitted]Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant set out in Section 7.02 of this Agreement was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) Upon If any member of the incurrence Restricted Group Incurs or issuance by Holdings or any of its Subsidiaries of issues any Indebtedness (other than Indebtedness expressly after the Amendment Effective Date not permitted to be incurred Incurred or issued pursuant to Section 7.02)4.09 of Annex II, the Borrowers shall prepay cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds net cash proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt by such member of the Restricted Group of such insurance net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds or condemnation awards(as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), and so long as no Default such Borrower (or the Company on its behalf) shall have occurred and cause to be continuing, such Loan Party prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or such Subsidiary may apply within 365 days prior to the date which is five (5) Business Days after the receipt by such Borrower of such net cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Borrowings Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the Borrowers shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the any L/C Obligations (other than the L/C Borrowings) under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess.
(viii) Prepayments of ; provided that the Revolving Credit Facility made Borrowers shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)2.05(b)(v) unless, first, shall be applied ratably after giving effect to the L/C Borrowings prepayment in full of the applicable Revolving Credit Loans and the Swing Line Loans, second, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to Section 2.05(b)(A) shall be (A) applied either (x) ratably to the each Class of Term Loans then outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, or (y) as requested by a Borrower in the case of prepayments of the Revolving Credit Facility required notice delivered pursuant to clause (i)vii) below, to any Class or Classes of Term Loans, (iiiB) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (ivvii) of this Section 2.05(b). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this clause (vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the amount remainingapplicable Refinanced Debt), if anyand (2) any Additional Facility Joinder Agreement or Extension Amendment, after may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment in full of all L/C Borrowings, Swing Line Term Loans and Revolving Credit Loans outstanding required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at such time and least two (2) Business Days prior to the Cash Collateralization of the remaining L/C Obligations in full (the sum date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction AmountDeclined Proceeds”) may of Term Loans required to be made pursuant to clauses (ii) and (iii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lender (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablea Borrower.
(ixviii) Notwithstanding any other provisions of this Section 2.05(b)2.05, (i) to the extent that any of or all the repatriation Net Available Cash of an amount any Asset Disposition by a Restricted Subsidiary is prohibited or delayed by applicable local law from being repatriated to the jurisdiction of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisthe relevant Borrower, an amount equal to the portion of such Net Available Cash Proceeds so affected will not be required to be applied to repay Term Loans at the Loans times provided in this Section 2.05(b) but may be retained by the applicable Restricted Subsidiary so long, but only so long long, as the applicable local law will not permit repatriation to the jurisdiction of the relevant Borrower (a Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable Restricted Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash Proceeds of any such Asset Disposition would result in have material adverse tax consequences (as determined in good faith by a Borrower) with respect to Holdings such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable Restricted Subsidiary.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility and its Subsidiaries on a consolidated basisdeclare all outstanding Borrowings, together with accrued interest and all other relevant amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility will be cancelled and all such outstanding amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Restricted Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a) – (h), (j), (k) or (l)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to within three Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) the Borrower or such Restricted Subsidiary shall have entered into a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases reinvestment (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon any Extraordinary Receipt received by or paid to or for the incurrence or issuance by Holdings account of the Borrower or any of its Subsidiaries Restricted Subsidiaries, and not otherwise included in clause (i) of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to this Section 7.022.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) 3 Business Days of after receipt thereof by Holdings the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiiix) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to within 3 Business Days after the date of receipt of such insurance proceeds or condemnation awardsNet Cash Proceeds), and so long as no Default shall have occurred and be continuingcontinuing or would result therefrom, such Loan Party the Borrower or such Restricted Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace replace, rebuild, restore or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(v).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each caseFacility, to the next four scheduled principal repayment installments thereof first, in direct order of maturity for the first four installmentsmaturity, and, second, pro rata rata, to the remaining amortization installments (excluding the Maturity Date installment), third, pursuant to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b2.07(a).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of ii),of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (TopBuild Corp), Credit Agreement (TopBuild Corp)
Mandatory. (i) If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.04 (excluding dispositions permitted by Section 7.04(m), (s) (to the extent the proceeds thereof are received by Borrower or a Restricted Subsidiary) and (t)) or (2) any Casualty Event occurs, that results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Proceeds in excess of $5 million, the Borrower shall cause to be prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or such Restricted Subsidiary of such Net Proceeds an aggregate amount of Term Loans in an amount equal to 100% of all Net Proceeds received; provided, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to offer to repurchase Permitted Pari Passu Secured Refinancing Debt (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 the net proceeds of such Disposition or Casualty Event (such Permitted Pari Passu Secured Refinancing Debt (or any Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower (or any Restricted Subsidiary) may apply such Net 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 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 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 2.05(b)(i) 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 any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(i) with respect to such portion of such Net Proceeds that the Borrower or the relevant Restricted Subsidiary shall have reinvested or entered into a binding commitment to reinvest or otherwise determined to reinvest (as set forth in a notice from the Borrower to the Administrative Agent to be delivered on or prior to the date which is ten (10) Business Days after the date of receipt of the applicable Net Proceeds), in each case in accordance with the definition of “Net Proceeds” and within the timeframe contemplated thereby.
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of Restricted Subsidiary incurs or issues any property pursuant to Section 7.05(l) which results Indebtedness after the Closing Date (other than, in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election case of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash ProceedsRestricted Subsidiary, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreementIndebtedness not prohibited under Section 7.02, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02Credit Agreement Refinancing Indebtedness), the Borrowers Borrower shall prepay cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of which is five (5) Business Days after the receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, by such Loan Party or such Restricted Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Net Proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total aggregate Revolving Credit Outstandings Exposures at any time exceed exceeds the aggregate Revolving Credit Facility at such time, Commitments then in either such caseeffect, the Borrowers Borrower shall immediately promptly prepay or cause to be promptly prepaid Revolving Credit Loans, Loans and Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiiv) Prepayments If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then not later than ten (10) Business Days after the date on which the Borrower is required to deliver annual financial statements pursuant to Section 6.01(a) with respect to such Excess Cash Flow Period, the Borrower shall prepay the Term Loans in an amount equal to (A) the Required ECF Percentage multiplied by the amount of Excess Cash Flow for such Excess Cash Flow Period minus (B) to the extent not financed with the proceeds of the incurrence of Indebtedness having a maturity of more than twelve (12) months from the date of incurrence thereof and not previously deducted pursuant to this clause (B) in any prior period, the amount of any optional prepayments of principal made by the Borrower during such Excess Cash Flow Period of (1) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such prepayment for purposes of this clause shall be the amount of the Borrower’s cash payment in respect of such prepayment) and (2) the Revolving Credit Facility made Loans (to the extent Revolving Credit Commitments are permanently reduced by the amount of, and at the time of, such prepayments).
(v) Each prepayment of Term Loans pursuant to this Section 2.05(b)) shall be paid to the Lendersapplied on a pro rata basis to each then outstanding Class of Term Loans and shall be further applied within each Class of Term Loans to the Lenders of such Class of Term Loans in accordance with their respective Pro Rata Shares (provided, first, that any prepayment of Term Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied ratably solely to each applicable Class (or Classes) of Refinanced Debt), subject to clause (vi) of this Section 2.05(b). Partial prepayments of the L/C Borrowings and the Swing Line Loans, second, Term Loans pursuant to this Section 2.05(b) shall be applied ratably to the outstanding Revolving Credit remaining scheduled amortization installments of the Term Loans required under Section 2.07(a) (other than the repayment to be made on the Maturity Date for the Term Loans, and, third, ) on a pro rata basis.
(vi) The Borrower shall be used to notify the Administrative Agent in writing of any mandatory prepayment of Loans (and/or Cash Collateralize the remaining Collateralization of L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility ) required to be made pursuant to clause clauses (i), (iii) or through (iv) of this Section 2.05(b)) promptly, and in no event more than three (3) Business Days, following the amount remaining, if any, after event giving rise to such mandatory prepayment. Each such notice shall specify the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction AmountDeclined Proceeds”) of Term Loans required to be made pursuant to clauses (i), (ii) and (iv) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day prior to the proposed date of such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds remaining thereafter may be retained by the Borrowers Borrower and/or applied for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced any purpose not otherwise prohibited by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablethis Agreement.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (CBS Corp), Credit Agreement (Entercom Communications Corp)
Mandatory. (i) [Reserved].
(ii) If any Loan Party (x) the Company or any Restricted Subsidiary of its Domestic Subsidiaries the Company Disposes of any property pursuant to Section 7.05(lor assets (other than any Disposition of any property or assets permitted by Sections 7.05 (a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m), (o), (p), (q), (s)), or (y) any Casualty Event occurs, which results in the realization or receipt by such Person the Company or Restricted Subsidiary of Net Cash Proceeds, the Borrowers Company shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth offered to be prepaid in clauses accordance with clause (v) and (viiib)(ix) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date which is ten (10) Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the realization or such Subsidiary may reinvest all receipt by the Company or any portion Restricted Subsidiary of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
clause (iib)(xi) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)below, the Borrowers shall prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom received; provided that if at the time that any such prepayment would be required, the Company is required to offer to repurchase any Permitted First Priority Refinancing Debt (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Company may apply such Net 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, further, that (A) 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 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 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within three ten (310) Business Days after the date of receipt thereof by Holdings or such Subsidiary (such prepayments to rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof.
(viii) and (viii) below)[Reserved.]
(iv) Upon any Extraordinary Receipt received by or paid to or for If the account of any Loan Party Company or any of its Domestic Subsidiaries, and Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not otherwise included in clause prohibited under Section 7.03 (i) of this excluding Section 2.05(b7.03(t)), the Borrowers Company shall prepay cause to be offered to be prepaid in accordance with clause (b)(ix) below an aggregate principal amount of Term Loans in an amount equal to 100% of such all Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent received therefrom on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days which is five (5) Business Days after the receipt by the Company or such Restricted Subsidiary of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Net Proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total aggregate Revolving Credit Outstandings Exposures at any time exceed exceeds the aggregate Revolving Credit Facility at such timeCommitments then in effect (including, in either such casefor the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the Borrowers Company shall immediately promptly prepay or cause to be promptly prepaid Revolving Credit Loans, Loans and Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii; provided that the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) Prepayments unless after the prepayment in full of the Revolving Credit Facility made Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect. If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Revolving Credit Loans and L/C Obligations denominated in Yen at such time exceeds an amount equal to 105% of the Yen Sublimit then in effect, then, within five (5) Business Days after receipt of such notice, the Company shall prepay or cause to be prepaid Loans and/or Cash Collateralize Letters of Credit in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Yen Sublimit then in effect.
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b), first, ) shall be applied ratably to each Class of Term Loans then outstanding (provided that (i) any prepayment of Term Loans with the L/C Borrowings and the Swing Line Loans, second, Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied ratably solely to the outstanding Revolving Credit each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required each prepayment pursuant to clause clauses (i), (iii) or through (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in direct order of maturity; and (without any further action by or notice C) each such prepayment shall be paid to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableLenders in accordance with their respective Pro Rata Shares of such prepayment.
(ixvii) Notwithstanding The Company shall notify the Administrative Agent in writing of any other provisions mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b), ) at least four (4) Business Days prior to the extent that date of such prepayment. Each such notice shall specify the repatriation date of an such prepayment and provide a reasonably detailed calculation of the amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Company’s prepayment notice and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Appropriate Lender’s Pro Rata Share of the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisprepayment.
Appears in 2 contracts
Samples: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(g)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall Borrower shall, subject to the prior application of such Net Cash Proceeds pursuant to the provisions of the Senior Credit Facility regarding the application of such Net Cash Proceeds, prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Person; provided, however, provided that, at the election proceeds of the Borrowers (as notified any Disposition permitted by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default Section 7.05(g) shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such not constitute Net Cash Proceeds to the extent that (A) such proceeds are reinvested in assets replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Subsidiary of a kind then used or useful usable in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated applicable Person within 180 days after from the date of receipt thereof or (B) if the applicable Borrower or Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such binding definitive agreementproceeds as part of a like-kind exchange under Section 1031 of the Code, in each of cases (x) and (y) as certified the potential replacement properties or assets are identified by such Borrower or Subsidiary within 180 days from the Lead Borrower in writing date the ownership to the Administrative Agentsold assets is transferred to the buyer of such property and the proceeds from such property are reinvested to acquire such replacement properties or assets within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property; and provided furtherfurther that, however, that the proceeds of any Casualty Event shall not constitute Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment extent that such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Guarantor of a kind then used or usable in the business of the Loans as set forth in this Section 2.05(b)(i)applicable Person within 180 days from the date of receipt thereof.; and
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance subsequent to the Closing Date by Holdings the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.03 (b)-(k)) or the issuance subsequent to the Closing Date by the Borrower or any of its Subsidiaries (or by any direct or indirect parent holding company of which the Borrower is a wholly-owned Subsidiary) of any Equity Interests (other than any such issuance to the Borrower or a wholly owned Subsidiary), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Bridge Loan Agreement (Sandridge Energy Inc), Bridge Loan Agreement (Sandridge Energy Inc)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property Subject in all respects to the prepayment and cash collateralization requirements under the Revolving Credit Agreement, and to the extent actually applied thereunder, to the extent not applied pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsRevolving Credit Agreement with respect to Revolving Credit Facility Collateral, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of the receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all Company or any portion of its Subsidiaries of Net Cash Proceeds from Asset Sales or Casualty Events (other than the Specified Sale) when aggregated with all such Net Cash Proceeds in assets used received prior to that time and not otherwise applied is equal to or useful in greater than Proceeds Amount, the business of the Loan Parties so long as within 365 days after the receipt of Company shall apply all such Net Cash ProceedsProceeds to prepay the Loans in the manner set forth in Section 2.08(b)(iv). After such application, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject shall reset to such definitive agreement or so reinvested shall be immediately applied zero upon the making of a mandatory prepayment pursuant to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.08(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant Subject to Section 7.022.08(b)(vi), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days after day of receipt thereof by Holdings the Company or any of its Subsidiaries of the Net Cash Proceeds from the Specified Sale, the Company shall apply an amount equal to the Applicable Prepayment Percentage of such Subsidiary Net Cash Proceeds (such prepayments if any) to be applied as prepay the Loans in the manner set forth in clauses Section 2.08(b)(iv). If the winning bid for any portion of assets or businesses that are part of a Specified Sale include a credit bid of New Money Loans (vas defined in the Existing DIP Term Loan Agreement), the amount of such credit bid shall be deemed to be Net Cash Proceeds for purposes of this Section 2.08(b)(ii).
(iii) Beginning with the Excess Cash Flow Period ending on December 31, 2014, the Company shall calculate Excess Cash Flow for such Excess Cash Flow Period no later than six months after the end of such Excess Cash Flow Period (such date, the “Excess Cash Flow Calculation Date”) and deliver a certificate signed by a Responsible Officer setting forth the amount, if any, of Excess Cash Flow for such Excess Cash Flow Period and the calculation thereof in reasonable detail. If the Worldwide Cash as of the last day of the applicable Excess Cash Flow Period exceeds $800,000,000 (viiithe “Excess Cash Trigger Amount”), the Company shall apply an amount equal to 50% of Excess Cash Flow above the Excess Cash Trigger Amount to prepay the Loans no later than 45 days following the Excess Cash Flow Calculation Date in the manner set forth in Section 2.08(b)(iv); provided that no prepayment shall be required pursuant to this Section 2.08(iii) below)to the extent that such prepayment would cause (a) Worldwide Cash to be less than the Excess Cash Trigger Amount or (b) U.S. Minimum Liquidity to be less than $100,000,000.
(iv) Upon any Extraordinary Receipt received by or paid Each prepayment of principal pursuant to or for this Section 2.08(b) shall be applied in the account following order: (x) first, to the ratable prepayment of any Loan Party or any of its Domestic Subsidiariesthe First Lien Loans until all such Loans have been prepaid in full, and not otherwise included second to the ratable prepayment of the Junior Loans until all such Loans have been prepaid in clause full and (iy) first to outstanding Base Rate Loans of each applicable Class up to the full amount thereof, and second to outstanding Eurodollar Rate Loans of each applicable Class up to the full amount thereof. Each prepayment made pursuant to this Section 2.05(b), the Borrowers 2.08(b) shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that made together with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior interest accrued to the date of receipt such prepayment on the principal amounts prepaid and, in the case of such insurance proceeds any prepayment of a Eurodollar Rate Loan on a date other than the last day of an Interest Period or condemnation awards)at its maturity, and so long as no Default any additional amounts which the Company shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after obligated to reimburse to the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property Lenders in respect of which such cash proceeds were received or thereof pursuant to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv9.04(c).
(v) Each The Agent shall give prompt notice of any prepayment of Loans pursuant to the foregoing provisions of required under this Section 2.05(b2.08(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)Lenders.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b2.08(b), (A) with respect only to any Asset Sale, IP License or Casualty Event described in Section 2.08(b)(i), to the extent that applicable law would effectively (1) prohibit or delay the repatriation to the United States of an amount America of any Net Cash Proceeds received by any Subsidiary that is not a U.S. Subsidiary or (2) impose material adverse tax or legal consequences on the Company and its Subsidiaries if such Net Cash Proceeds would result were so repatriated, in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basiseach case as determined by the Company in good faith, an amount equal to the portion of such Net Cash Proceeds so affected will shall be disregarded for purposes of determining the amount of any mandatory prepayment required to be made under this Section 2.08(b) so long, but only for so long, as applicable local law would prohibit such repatriation (the Company hereby agreeing to promptly take or to cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the applicable local law to permit such repatriation) or impose such material adverse tax consequences, and at such time as such repatriation of any such Net Cash Proceeds becomes permitted under the applicable local law and/or such material adverse tax consequences would no longer exist (and in any event within three Business Days thereafter) (and whether or not any of such Net Cash Proceeds are actually repatriated), the Company shall prepay the Loans in accordance with Section 2.08(b)(iii), and (B) with respect only to any Excess Cash Flow prepayment described in Section 2.08(b)(iii), to the extent that applicable law would effectively prohibit or delay the repatriation to the United States of America of any proceeds received by any Subsidiary that is not a U.S. Subsidiary or result in material adverse tax consequences, as determined by the Company in good faith, the proceeds so affected shall be disregarded for purposes of determining the amount of any mandatory prepayment required to be made under Section 2.08(b) so long, but only for so long, as applicable local law would prohibit such repatriation (the Company hereby agreeing to promptly take or to cause the applicable Subsidiary to promptly take (as the case may be) all actions required by the applicable local law to permit such repatriation), and at such time as such repatriation of any such proceeds becomes permitted under the applicable local law (and in any event within three Business Days thereafter) (and whether or not any of such proceeds are actually repatriated), the Company shall prepay the Loans in accordance with Section 2.08(b)(iv).
(vii) Any Net Cash Proceeds not required to be applied to repay the prepayment of Loans but only so long as pursuant to this Section 2.08 shall be available to the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings Company and its Subsidiaries to use for their general corporate purposes.
(viii) If any of the Loans would otherwise constitute an “applicable high yield discount obligation” within the meaning of Section 163(i)(1) of the Code, at the end of any “accrual period” (as defined in Section 1272(a)(5) of the Code) ending after the fifth anniversary of the date of the Existing DIP Term Loan Agreement (each, an “AHYDO Redemption Date”), the Company shall be required to redeem for cash a portion of each such Loan then outstanding equal to the Mandatory Principal Redemption Amount (each such redemption, a “Mandatory Principal Redemption”). The redemption price for the portion of each Loan thus redeemed shall be 100% of the principal amount of such portion plus any accrued interest thereon on a consolidated basisthe date of redemption. No partial redemption or repurchase of the Loans prior to any AHYDO Redemption Date pursuant to any other provision of this Agreement will alter the Company’s obligation to make any Mandatory Principal Redemption with respect to any Loans that remain outstanding on such AHYDO Redemption Date. The ordering rule in Section 2.08(b)(iv) shall not apply to redemptions required pursuant to this Section 2.08(b)(viii).
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement
Mandatory. (i) If any Loan Party Borrower or any of its Domestic their Subsidiaries Disposes of any property pursuant to Section 7.05(lor assets (other than inventory in the ordinary course of business) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $500,000 in the aggregate for any Fiscal Year, the Borrowers shall prepay on or prior to the date which is five (5) Business Days after the date of such receipt, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viiivi) below); provided, however, thatthat so long as no Default or Event of Default exists, Net Cash Proceeds relating to the disposition of obsolete or retired equipment in the ordinary course of a Loan Party’s (or a Loan Party’s Subsidiary’s) business shall not be included (and shall not count against the $500,000 threshold set forth above) to the extent the applicable Loan Party (or applicable Loan Party’s Subsidiary) intends to use such Net Cash Proceeds to acquire like assets useful to its business within ninety (90) days after the receipt of such Net Cash Proceeds or to reimburse itself for such a purchase occurring before receipt of such Net Cash Proceeds.
(ii) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02 (including, without limitation, Section 7.02(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 (v) and (vi) below).
(iii) Upon the receipt of any settlement of or payment to any Loan Party or Loan Parties with respect to any property or casualty insurance, which 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 (v) and (vi) below); provided that with respect to any Net Cash Proceeds of an Extraordinary Receipt, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition)Borrowers, and so long as no Event of Default shall have occurred and be continuing, such Loan Party 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 assets used fixed capital or useful operating assets, in the business each case of the Loan Parties clause (A) or (B) so long as (x) within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase repair, rebuilding or reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (y) if a binding definitive agreement for to so repair, rebuild or reinvest has been executed within such purchase shall have been entered into and 180-day period, then such purchase repair, rebuilding or reinvestment shall have been consummated within 180 days after the entering into of such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below2.05(b)(iv).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excessexcess (such prepayments and/or Cash Collateralization to be applied as set forth in clause (vi) below).
(viiiv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) (other than clause (iv)) shall be applied, first, to the Term Loans (and, if applicable, any 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 agrees to receive less than its pro rata share of such prepayment) and second, to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (vi) of this Section 2.05(b). Subject to Section 2.16, such prepayments shall be paid to the Lenders pro rata in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)) shall be applied, first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding prepay Revolving Credit LoansLoans 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 L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its 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 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 Facility shall be automatically Commitments, in each case), second, to the Term Loans (and, if applicable, any Incremental Term Loans on a ratable basis), and permanently reduced by to the Reduction Amount as set forth remaining principal repayment installments thereof in Section 2.06(b)(iiinverse order of their maturities, on a pro rata basis (except to the extent any applicable Term Lender agrees to receive less than its pro rata share of such prepayment) and Section 2.06(b)(iii)third, to Cash Collateralize the remaining L/C Obligations. 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 the Borrowers any Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Construction Partners, Inc.), Credit Agreement (Construction Partners, Inc.)
Mandatory. (i) (A) If (1) any Loan Party Prepayment Asset Sale occurs or (2) any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person any Restricted Company of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such DispositionNet Cash Proceeds an aggregate principal amount of Initial Term Loans in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, and so long as no Default on or prior to such date, the Borrower shall have occurred and be continuing, such Loan Party or such Subsidiary may given written notice to the Administrative Agent of its intention to reinvest all or any a portion of such Net Cash Proceeds in assets used or useful in the business accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into Default has occurred and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (xis then continuing) and (y) as certified 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 Lead Borrower in writing Collateral ranking pari passu with the Lien securing the Initial Term Loans pursuant to the Administrative Agent; and provided further, however, that any terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower, at its election, may apply the Applicable Asset Sale 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) and the remaining Net Cash Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (x) the portion of the Applicable Asset Sale Proceeds (but not subject the other Net Cash Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Asset Sale Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such definitive agreement or so reinvested Net Cash Proceeds shall be immediately applied allocated to the Initial Term Loans in accordance with the terms hereof to the prepayment of the Initial Term Loans as set forth in and the amount of prepayment of the Initial Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i).
2.06(b)(i) shall be reduced accordingly and (iiy) [Intentionally Omitted].
(iii) Upon to the incurrence extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)prepaid, the Borrowers declined amount shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly (and in any event within three ten (310) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to after the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (xrejection) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay the Initial Term Loans on such date is less than or equal to $1,000,000, in accordance with the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.terms hereof;
Appears in 2 contracts
Samples: Credit Agreement (Dun & Bradstreet Holdings, Inc.), Credit Agreement (Dun & Bradstreet Holdings, Inc.)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay (or, in the case of the Incremental Term Facility, if any, offer to purchase at par), immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $150,000,000; provided, howeverthat, the foregoing requirement to offer to purchase Incremental Term Loans, if any, shall only apply in the case of a Disposition of any Significant Company or substantially all the assets of any Significant Company; provided, further, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided furtherprovided, however, 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 2.05(b)(i2.04(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Company or any of its the Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.15), the Borrowers Borrower shall prepay an aggregate principal amount of Term A Loans and Revolving Credit Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Restricted Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b)(i) shall be applied, first, ratably to the Term A Facility and any applicable Incremental Tranche and, in each caseto the extent such prepayment is to be made from the Net Cash Proceeds of a Disposition of a Significant Company, but subject to Section 2.04(b)(vii), the Incremental Term Facility, if any, and to the principal repayment of installments thereof first, in direct order of maturity for the first four installmentson a pro-rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b2.04(b).
(viiv) Notwithstanding any Each prepayment of Loans pursuant to Section 2.04(b)(ii) shall be applied, first, to the other provisions Term A Facility and to the principal repayment of installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (i), (iii) or (ivvi) of this Section 2.05(b2.04(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Swingline Loans and or L/C Borrowings and/or or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Swingline Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Swingline Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the relevant L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixvii) Notwithstanding any other provisions of this Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make, in accordance with Section 2.05(b2.04(b)(i), an offer to purchase at par the outstanding Incremental Term Loans, if any (a “Waivable Prepayment”), not less than three Business Days prior to the extent that date (the repatriation “Required Prepayment Date”) on which the Borrower is required to make such Waivable Prepayment, the Borrower shall notify the Administrative Agent of an the amount of such Net Cash Proceeds would result prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding outstanding Incremental Term Loans of the amount of such Incremental Term Lender’s Applicable Percentage of such Waivable Prepayment and such Incremental Term Lender’s option to refuse such amount. Each such Incremental Term Lender may exercise such option to refuse such amount by giving written notice to the Company and the Administrative Agent of its election to do so on or before 1:00 p.m., New York City time, on the first Business Day prior to the Required Prepayment Date (it being understood that any Incremental Term Lender which does not notify the Company and the Administrative Agent of its election to exercise such option on or before 1:00 p.m., New York City time, on 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). On the Required Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied (i) in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such Net Cash Proceeds so affected will not be required option, to prepay the Incremental Term Loans held by such Lenders (which prepayment shall be applied to repay the scheduled installments of principal of the Incremental Term Loans but only so long as specified by the repatriation Incremental Term Supplement), and (ii) in an amount equal to that portion of the Waivable Prepayment that otherwise would have been payable to those Incremental Term Lenders that have elected to exercise such amount option, to prepay the Term A Loans and Revolving Credit Loans, which prepayment shall be further applied to the scheduled installments of Net Cash Proceeds would result principal of the Term A Loans and Revolving Credit Loans in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisaccordance with Section 2.04(b)(iv).
Appears in 2 contracts
Samples: Credit Agreement (AMC Networks Inc.), Credit Agreement (AMC Networks Inc.)
Mandatory. (i) If If, at any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in time, the realization by Total Outstandings at such Person of Net Cash Proceedstime exceed the Maximum Revolving Credit, then, within one Business Day, the Borrowers shall prepay the outstanding Loans and/or the Cash Collateralize the outstanding L/C Obligations (including by depositing funds in the L/C Cash Collateral Account pursuant to Section 2.04(h)(i)) in an aggregate principal amount sufficient to reduce the amount of Total Outstandings as of such date of payment to an amount less than or equal to the Maximum Revolving Credit; provided, however, that, subject to the provisions of Section 2.04(h)(ii), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Maximum Revolving Credit above at such time.
(ii) At any time following the occurrence and during the continuation of a Liquidity Period, within five Business Days following the receipt of any Net Cash Proceeds in respect of any Disposition of Collateral or any Net Insurance/Condemnation Proceeds (other than any Disposition (A) permitted by Section 7.05(a), (b), (c), (d), (h) or (i), or (B) in the ordinary course of business of the Borrowers and their respective Subsidiaries), the Borrowers shall apply an amount equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at prepay the election outstanding principal amount of the Loans and/or Cash Collateralize the outstanding L/C Obligations, and the Borrowers (as notified by the Lead Borrower shall deliver an updated Borrowing Base Certificate to the Administrative Agent on or prior to the date of any such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party Disposition or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Insurance/Condemnation Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon Prepayments of the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Facilities made pursuant to this Section 7.022.06(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansSwingline Loans or Protective Advances, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, Loans and third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in .
(iv) In the case of prepayments of the Revolving Credit Facility Facilities required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.06(b), the amount remaining, if any, after the prepayment in full of all L/C BorrowingsBorrowings and Loans, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its their business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as in the L/C Cash Collateral Account shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Warrior Met Coal, Inc.), Asset Based Revolving Credit Agreement (Warrior Met Coal, LLC)
Mandatory. Subject to Section 2.07(f), (i) If if any Loan Party or any of its Domestic Subsidiaries Disposes disposes of any property pursuant (other than (x) any Disposition of any property permitted by Section 7.05 (other than clause (d) and (f) thereof) and (y) any Asbestos Insurance Settlement so long as such proceeds are used or committed to Section 7.05(lbe used to reimburse Parent or any of its Subsidiaries or make payments in respect of related claims against Parent or any of its Subsidiaries and defense costs related thereto) which that results in the realization by such Person the Loan Parties and their respective Subsidiaries of Net Cash ProceedsProceeds in the aggregate for all such dispositions in excess of $50,000,000 in any Fiscal Year (excluding any portion thereof that is reinvested as provided below), the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds (to the extent in excess of $50,000,000 in such Fiscal Year) within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiivi) below); provided, however, that, with respect to any such Net Cash Proceeds realized, at the election of either the Borrowers US Borrower or the European Borrower (as notified by the Lead such Borrower to the Administrative Agent on or prior to the date of such Dispositiondisposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as as, within 365 days 12 months after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated (or, if the Parent or (y) a binding definitive agreement for such purchase shall its Subsidiaries have been entered into and binding contractual commitments for reinvestment within such purchase shall have been consummated 12-month period, not so reinvested within 180 days after 18 months following the date of receipt of such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative AgentNet Cash Proceeds); and provided further, however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied subject to the prepayment of the Term Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(b), (c), (d), (e), (f) and (g) (other than Section 7.05(g)(iii))) which results in the realization by such Person of Net Cash ProceedsProceeds (when aggregated with the Net Cash Proceeds received by all Loan Parties during such year) in excess of $250,000 in any year, the Borrowers Borrower shall prepay an aggregate principal amount of Loans Loans, Cash Collateralize Letters of Credit and Cash Collateralize the DPLC Obligations equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at .
(ii) Upon the election sale or issuance by any Loan Party or any of the Borrowers its Subsidiaries of any of its Equity Interests (as notified by the Lead Borrower other than Excluded Issuances and any sales or issuances of Equity Interests to the Administrative Agent on or prior to the date of such Dispositionanother Loan Party), the Borrower shall prepay an aggregate principal amount of Loans, Cash Collateralize Letters of Credit and so long as no Default shall have occurred and be continuing, Cash Collateralize the DPLC Obligations equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary may reinvest all or any portion of (such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing prepayments to the Administrative Agent; and provided further, however, 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 2.05(b)(iclauses (v) and (viii) below).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans Loans, Cash Collateralize Letters of Credit and Cash Collateralize the DPLC Obligations equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i), (ii), or (iii) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans Loans, Cash Collateralize Letters of Credit and Cash Collateralize the DPLC Obligations equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to (A) any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply may, within 365 150 days after the receipt of thereof, utilize such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or (and, to the acquisition of assets used or useful extent so utilized, shall not be required to prepay Loans as set forth in this Section 2.05(b)(iv)) and (B) any other Extraordinary Receipt, at the business election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such other Extraordinary Receipt), and so long as no Default shall have occurred and be continuing, such Loan Parties Party or such Subsidiary may, within 150 days after the receipt thereof, utilize an amount not exceeding 66 2/3% of such Extraordinary Receipt to (x) acquire, repair or maintain fixed or capital assets or (y) enter into a binding definitive agreement for such replacementacquire inventory (and, repair or acquisition and such replacementto the extent so utilized, repair or acquisition shall have been completed within 180 days after such binding definitive agreementnot be required to prepay Loans as set forth in this Section 2.05(b)(iv)); and provided, further, however, that any cash proceeds not so applied as provided in clauses (A) and (B) above shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans made or Cash Collateral furnished pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct inverse order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility and the DPLC Obligations in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit LoansLoans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(vii) If for any reason the Total Revolving Credit Outstandings denominated in Alternative Currencies at any time exceed the Alternative Currency Sublimit at such time, Swing Line the Borrower shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments made or Cash Collateral furnished pursuant to this Section 2.05(b) on account of the Revolving Credit Facility made pursuant to this Section 2.05(b)and/or the DPLC Obligations, first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansBorrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations and, fourth, shall be used to Cash Collateralize the DPLC Obligations; and, in the case of prepayments prepayments/Cash Collateralization of the Revolving Credit Facility and DPLC Obligations, as applicable, required pursuant to clause (i), (ii), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans Borrowings and Revolving Credit Loans outstanding at such time and time, the Cash Collateralization of the remaining L/C Obligations in full (and the sum Cash Collateralization of such prepayment amountsthe remaining DPLC Obligations in full, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash CollateralizedCollateralized or drawing of any letter of credit issued by Bank of America under the Reimbursement Documents, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers Borrower or any other Loan Party) to reimburse (x) the L/C Issuer or Issuer, (y) the Revolving Credit LendersLenders or (z) Bank of America (in its capacity as the issuer of the letters of credit under the Reimbursement Documents), as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Albany Molecular Research Inc), Credit Agreement (Albany Molecular Research Inc)
Mandatory. (i) Within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b) (such payment date, the “Excess Cash Flow Payment Date”), the Borrowers shall prepay an aggregate principal amount of Loans equal to the excess (if any) of (A) the Applicable Prepayment Percentage of Excess Cash Flow for the Fiscal Year covered by such financial statements over (B) the aggregate principal amount of Term Loans prepaid pursuant to Section 2.05(a) during such Fiscal Year (such prepayments to be applied as set forth in clause (iv) below).
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c), (d), (e), (f), (i) or (j)) which results in the realization by such Person of Net Cash ProceedsProceeds in excess of $5,000,000, individually or in the aggregate during any Fiscal Year, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days that are in excess of $5,000,000 immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers (as notified by the Lead Borrower Borrowers to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for with respect to such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases by the Borrowers (x) and (y) as certified by the Lead Borrower Borrowers in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.05(b)(ii).
; provided further that Net Cash Proceeds received in connection with any Disposition of ABL Priority Collateral (iias such term is defined in the Intercreditor Agreement) [Intentionally Omitted]shall not be required to be used to prepay outstanding Term Loans to the extent that such Net Cash Proceeds are used to prepay the revolving loans under the Revolving Credit Agreement.
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its their Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Sections 7.02(a) - (m), Section 7.027.02(n)(ii) and Sections 7.02 (o) – (v)), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided, however, provided that with respect any prepayment of Loans pursuant to any proceeds of insurance or condemnation awards (or payments in lieu thereof), this Section 2.05(b)(iii) shall be made at the election of the Borrowers (as notified by the Lead Borrower a premium if and to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this extent required by Section 2.05(b)(iv2.05(e).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied ratably to each Series of Term Loans and shall be applied to the Term Facility B Repayment Amounts and any applicable Incremental Tranche andNew Term Loan Repayment Amounts, in as the case may be, on a pro rata basis, and each case, such prepayment shall be paid to the principal repayment installments thereof first, Lenders in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum accordance with their respective Applicable Percentages of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableSeries.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 2 contracts
Samples: Credit Agreement (Exopack Holding Corp), Credit Agreement (Exopack Holding Corp)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i)[Reserved].
(ii) [Intentionally Omitted]Except as otherwise provided in Section 6.11, the aggregate Term A-1 Commitments shall be automatically and permanently reduced to zero on the earlier of (x) the Termination Date and (y) the date on which all of the Certain Funds Purposes have been achieved.
(iii) Upon the incurrence If after giving effect to any reduction or issuance by Holdings or any termination of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Multicurrency Revolving Credit Commitments under this Section 7.02)2.06, the Borrowers shall prepay an aggregate principal amount Letter of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings Credit Sublimit or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), Swing Line Sublimit exceeds the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Multicurrency Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Letter of Credit Loans, Sublimit or the Swing Line Loans and L/C Borrowings and/or Cash Collateralize Sublimit, as the L/C Obligations (other than case may be, shall be automatically reduced, by the L/C Borrowings) in an aggregate amount equal to of such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility The Term A-1 Commitments shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to 100% of the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such committed amount of Net Cash Proceeds would result any (i) credit facility or (ii) private placement note purchase agreement made available to a member of the Consolidated Group that is (x) subject to conditions precedent to funding of the loans or purchasing the notes thereunder that are, in material adverse tax consequences respect of certainty of funding, not more restrictive than the conditions set forth in this Agreement, (y) subject to Holdings restrictions on assignments of loans or private placement notes thereunder not more restrictive than those set forth in this Agreement and its Subsidiaries (z) entered into with financial institutions that are either (A) Lenders or an Affiliate or Approved Fund of the Lenders, (B) lenders approved by the Company on or prior to the Restatement Date or (C) approved by the Company (each such term facility or private placement agreement, a consolidated basis“Qualifying Committed Facility”) (such reduction to occur upon the effectiveness of definitive documentation for such Qualifying Committed Facility).
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Mandatory. The Borrowers shall make a prepayment of the Loans until Paid in Full upon the occurrence of any of the following events at the following times and in the following amounts:
(i) If Concurrently with, and, in any case, no later than within five (5) Business Days of the receipt by any Loan Party or any of its Domestic their Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsProceeds from any Asset Sale or Recovery Event, the Borrowers shall prepay in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)which exceeds $500,000; provided, however, provided that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and x) so long as no Event of Default shall have occurred and be continuing, such Loan Party and (y) upon written notice to the Administrative Agent, the Borrowers, directly or such Subsidiary may reinvest all through one or any portion more of their Subsidiaries, shall have the option to invest such Net Cash Proceeds within 150 days of receipt thereof in assets of the general type used or useful in the business of the Loan Parties so long as within 365 days after and their Subsidiaries (provided that, if, prior to the receipt expiration of such Net Cash Proceeds150-day period, either (x) such purchase the Loan Parties, directly or through their Subsidiaries, shall have been consummated or (y) entered into a binding definitive agreement providing for such purchase investment on or prior to the expiration of an additional 90-day period, such 150-day period shall have been entered into and be extended to the date provided for such purchase shall have been consummated within 180 days after investment in such binding definitive agreement); provided, in each of cases (x) and (y) as certified by further that, except during a Cash Dominion Period, only the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested received from Asset Sales of Accounts constituting Collateral shall be immediately applied required to the prepayment of prepay the Loans as set forth in pursuant to this Section 2.05(b)(i2.10(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon Concurrently with the incurrence or issuance receipt by Holdings any Loan Party or any of its their Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days from any issuance of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account Indebtedness of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause their Subsidiaries (i) of this excluding Indebtedness permitted by Section 2.05(b6.2), the Borrowers shall prepay in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three Proceeds.
(3iv) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)[Intentionally Omitted].
(v) Each prepayment [Intentionally Omitted].
(vi) Except with respect to Overadvance Loans and Protective Advances that are not required to be repaid under Sections 2.23 and 2.24, if, at any time, the aggregate amount of the Lenders’ Revolving Credit Exposure (excluding for this purpose any outstanding Letters of Credit that have been Cash Collateralized) exceeds the Line Cap then in effect, the Borrowers shall promptly (and in any event, within one (1) Business Day after the date when such excess first arose) (i) repay the Revolving Loans pursuant and/or Swingline Loans in an amount necessary to eliminate such excess and (ii) if, after giving effect to the foregoing repayment in full of all outstanding Revolving Credit Loans such excess has not been eliminated, Cash Collateralize the outstanding Letters of Credit.
(vii) During a Cash Dominion Period, the Loans shall be repaid daily in accordance with the provisions of this Section 2.05(b5.19.
(viii) Mandatory prepayments of the Loans shall be applied, first, to prepayment of the Term Facility Swingline Loans (and any applicable Incremental Tranche andrelated accrued interest and fees); second, if all Swingline Loans have been paid in each casefull, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments outstanding LC Disbursements (excluding the Maturity Date installmentand related accrued interest and fees), ; third, if all Swingline Loans and outstanding LC Disbursements have been paid in full, to prepayment of the Maturity Date installment Revolving Loans (and related accrued interest and fees); and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit if all Swingline Loans, Swing Line outstanding LC Disbursements and Revolving Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) have been paid in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)full, first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C all LC Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion 105% of such Net Cash Proceeds so affected will not be required LC Obligations, on terms, pursuant to be applied documentation, and in form and substance reasonably satisfactory to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings Administrative Agent and its Subsidiaries on a consolidated basiseach applicable Issuing Bank.
Appears in 1 contract
Samples: Credit Agreement (IBEX LTD)
Mandatory. (i) [Reserved].
(ii) If any Loan Party (x) the BorrowerCompany or any Restricted Subsidiary of its Domestic Subsidiaries the BorrowerCompany Disposes of any property pursuant to Section 7.05(lor assets (other than any Disposition of any property or assets permitted by Sections 7.05 (a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m), (o), (p), (q), (s)), or (y) any Casualty Event occurs, which results in the realization or receipt by such Person the BorrowerCompany or Restricted Subsidiary of Net Cash Proceeds, the Borrowers BorrowerCompany shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth offered to be prepaid in clauses accordance with clause (v) and (viiib)(ix) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date which is ten (10) Business Days after the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the realization or such Subsidiary may reinvest all receipt by the BorrowerCompany or any portion Restricted Subsidiary of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
clause (iib)(xi) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)below, the Borrowers shall prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom received; provided that if at the time that any such prepayment would be required, the BorrowerCompany is required to offer to repurchase any Permitted First Priority Refinancing Debt (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the Net Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the BorrowerCompany may apply such Net 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, further, that (A) 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 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 2.05(b)(ii) shall be reduced accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within three ten (310) Business Days after the date of receipt thereof by Holdings or such Subsidiary (such prepayments to rejection) be applied as set forth to prepay the Term Loans in clauses accordance with the terms hereof.
(viii) and (viii) below)[Reserved.]
(iv) Upon any Extraordinary Receipt received by or paid to or for If the account of any Loan Party BorrowerCompany or any of its Domestic Subsidiaries, and Restricted Subsidiary incurs or issues any Indebtedness after the Closing Date (other than Indebtedness not otherwise included in clause prohibited under Section 7.03 (i) of this excluding Section 2.05(b7.03(t)), the Borrowers BorrowerCompany shall prepay cause to be offered to be prepaid in accordance with clause (b)(ix) below an aggregate principal amount of Term Loans in an amount equal to 100% of such all Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent received therefrom on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days which is five (5) Business Days after the receipt by the BorrowerCompany or such Restricted Subsidiary of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Net Proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total aggregate Revolving Credit Outstandings Exposures at any time exceed exceeds the aggregate Revolving Credit Facility at such timeCommitments then in effect (including, in either such casefor the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the Borrowers BorrowerCompany shall immediately promptly prepay or cause to be promptly prepaid Revolving Credit Loans, Loans and Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii; provided that the BorrowerCompany shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(v) Prepayments unless after the prepayment in full of the Revolving Credit Facility made Loans and Swing Line Loans such aggregate Outstanding Amount exceeds the aggregate Revolving Credit Commitments then in effect. If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Revolving Credit Loans and L/C Obligations denominated in Yen at such time exceeds an amount equal to 105% of the Yen Sublimit then in effect, then, within five (5) Business Days after receipt of such notice, the Company shall prepay or cause to be prepaid Loans and/or Cash Collateralize Letters of Credit in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Yen Sublimit then in effect.
(vi) Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b), first, ) shall be applied ratably to each Class of Term Loans then outstanding (provided that (i) any prepayment of Term Loans with the L/C Borrowings and the Swing Line Loans, second, Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied ratably solely to the outstanding Revolving Credit each applicable Class of Refinanced Debt, and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required each prepayment pursuant to clause clauses (i), (iii) or through (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied to the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in direct order of maturity; and (without any further action by or notice C) each such prepayment shall be paid to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableLenders in accordance with their respective Pro Rata Shares of such prepayment.
(ixvii) Notwithstanding The BorrowerCompany shall notify the Administrative Agent in writing of any other provisions mandatory prepayment of Term Loans required to be made pursuant to clauses (i) through (iv) of this Section 2.05(b), ) at least four (4) Business Days prior to the extent that date of such prepayment. Each such notice shall specify the repatriation date of an such prepayment and provide a reasonably detailed calculation of the amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’sCompany’s prepayment notice and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Appropriate Lender’s Pro Rata Share of the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisprepayment.
Appears in 1 contract
Mandatory. (i) If any Loan Party Borrower or any of its Domestic Subsidiaries Subsidiary Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c) or (d)) which results in the realization by any such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and clause (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings any Borrower or any of its Subsidiaries Subsidiary of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.03(a)-(e)), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings or any such Subsidiary Person (such prepayments to be applied as set forth in clauses (v) and clause (viii) below).
(iviii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party Borrower or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b)Subsidiary, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by any such Loan Party or such Subsidiary Person (such prepayments to be applied as set forth in clauses (v) and clause (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower Borrowers to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary Person may apply within 365 180 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iii).
(iv) If, at the end of any fiscal year (commencing with the fiscal year ending December 31, 2009), the ratio of Borrowers' Funded Debt to EBITDA Ratio exceeds 2.75:1.00 for such fiscal year, the Borrowers shall prepay an aggregate principal amount of the Acquisition Credit Loans equal to fifty percent (50%) of the Borrowers' Free Excess Cash Flow for each fiscal year, which prepayment shall be made within one hundred twenty (120) days of the end of such fiscal year. Prepayments made pursuant to this Section 2.05(b)(iv)) shall be applied to the outstanding principal on the Acquisition Credit Loans in inverse order of maturity. No payment shall be required from Borrowers' Free Cash Flow if the aggregate outstanding principal on the Acquisition Credit Loans is $0.
(v) Each prepayment of If for any reason the Total Outstandings at any time exceed the Aggregate Commitments then in effect, Borrowers shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided, however, that Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to the foregoing provisions of this Section 2.05(b2.05(c) shall be applied, first, to unless after the Term Facility and any applicable Incremental Tranche and, prepayment in each case, to full of the principal repayment installments thereof first, Loans the Total Outstandings exceed the Aggregate Commitments then in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)effect.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Aggregate Revolving Credit Facility at such timeCommitments then in effect, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of ; provided, however, that Borrowers shall not be required to Cash Collateralize the Revolving Credit Facility made L/C Obligations pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If any Loan Party or any The Borrower shall (A) on the date of its Domestic Subsidiaries Disposes receipt of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries from the sale, lease, transfer or other disposition of any Indebtedness property or assets of the Borrower or any of its Subsidiaries (other than Indebtedness any property or assets expressly permitted to be incurred sold, leased, transferred or issued otherwise disposed of pursuant to Section 7.02clause (i), (ii), (iii), (iv), (ix), (x), (xii), (xiii) or (xiv) of Section 5.02(e) and property or assets to the Borrowers shall prepay an extent that the aggregate principal amount value of Loans equal to 100% such property and assets disposed of all in any single transaction or related series of transactions does not exceed $500,000), (B) no later than five days following the receipt of the Net Cash Proceeds received therefrom within three by the Borrower or any of its Subsidiaries from any Equipment Financing Transaction, Permitted Foreign Receivables Transaction, or Real Estate Financing Transaction, (3C) Business Days on the date of receipt thereof of the Net Cash Proceeds by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) any of its Subsidiaries from any Permitted Domestic Receivables Transaction, and (viiiD) below).
(iv) Upon on the date of receipt of the Net Cash Proceeds by the Borrower or any Extraordinary of its Subsidiaries from any Insurance Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Domestic SubsidiariesSubsidiaries (other than the Net Cash Proceeds of any Insurance Receipt with respect to property subject to an Equipment Financing Transaction, and not otherwise included in clause (i) of this a Real Estate Financing Transaction or a Lien permitted under Section 2.05(b5.02(a)(iv)), the Borrowers shall prepay an aggregate principal amount of Loans the Advances comprising part of the same Borrowings equal to 100% of the amount of such Net Cash Proceeds within Proceeds. Each prepayment of Advances pursuant to this clause (i) shall be applied to prepay the Tranche A Term Advances and the Tranche B Term Advances and reduce the Revolving Credit Facility on a pro rata basis; PROVIDED, HOWEVER, that notwithstanding the foregoing provisions of this clause (i) and Section 2.06(b)(vi), in no event shall the Revolving Credit Facility be reduced pursuant to this clause (i), to less than $500,000,000, and any amounts that otherwise would have been applied to reduce the Revolving Credit Facility shall be applied to the further prepayment of the Tranche A Term Loans and the Tranche B Term Loans on a pro rata basis. Each prepayment of Tranche A Term Advances and Tranche B Term Advances pursuant to this clause (i) shall be applied to reduce the principal repayment installments thereof in inverse order of maturity.
(ii) The Borrower shall, no later than three (3) Business Days following the receipt of receipt thereof the Net Cash Proceeds by such Loan Party the Borrower or such Subsidiary any of its Subsidiaries from (such prepayments A) the incurrence or issuance by the Borrower or any of its Subsidiaries of any Debt (other than Debt expressly permitted to be applied as set forth in clauses incurred or issued pursuant to Section 5.02(b) (vother than Section 5.02(b)(i)(C)) and (viiiB) below); providedthe issuance or sale by the Borrower or any of its Subsidiaries of any Equity Interests therein, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election prepay an aggregate principal amount of the Borrowers Tranche A Term Advances and Tranche B Term Advances comprising part of the same Borrowings equal to 100% of the amount of such Net Cash Proceeds. Each prepayment of Tranche A Term Advances and Tranche B Term Advances pursuant to this clause (as notified by ii) shall be applied to prepay the Lead Borrower Tranche A Term Advances and Tranche B Term Advances on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and to reduce the Administrative Agent principal repayment installments thereof in inverse order of maturity. In the event that there are no outstanding Tranche A Term Advances or Tranche B Term Advances on or prior to the date of receipt of any such insurance proceeds or condemnation awardsNet Cash Proceeds, no prepayment shall be required.
(iii) The Borrower shall, on the tenth day following the date on which the Borrower delivers to the Administrative Agent the Required Financial Information for any Fiscal Year pursuant to Section 5.03(b), commencing with the Fiscal Year ending November 25, 2001, prepay an aggregate principal amount of Tranche A Term Advances and Tranche B Term Advances equal to 50% of the amount of Consolidated Excess Cash Flow for such Fiscal Year; PROVIDED, HOWEVER, that the sum of (A) the mandatory prepayments required to be made under this Section 2.06(b)(iii) for Fiscal Years 2001 and 2002, (B) the repayments required to be made under Sections 2.04(a) and (b) during such Fiscal Years, and (C) any payments made under Sections 2.06(a) and 2.06(b)(v) during such Fiscal Years shall not exceed $200,000,000 during any such Fiscal Year. Each prepayment of Tranche A Term Advances and Tranche B Term Advances pursuant to this clause (iii) shall be applied to prepay the Tranche A Term Advances and Tranche B Term Advances on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and to reduce the principal repayment installments thereof in inverse order of maturity. In the event that there are no outstanding Tranche A Term Advances or Tranche B Term Advances on the date of receipt of any such Net Cash Proceeds, no prepayment shall be required.
(iv) Notwithstanding the foregoing, in the case of any mandatory prepayment of the Tranche B Term Advances pursuant to clause (i)(B), clause (i)(C) or clause (ii) of this Section 2.06(b), the Tranche B Term Lenders shall, so long as there are outstanding Tranche A Term Advances, have the option to waive the right to receive the amount of such mandatory prepayment of the Tranche B Term Advances. In the event that there are no Default outstanding Tranche A Term Advances on the date of any mandatory prepayment, the Tranche B Term Lenders shall have occurred and be continuing, no option to waive the right to receive such Loan Party or such Subsidiary may apply within 365 days after prepayment. Upon the receipt of any such cash proceeds either (x) mandatory prepayment, the Administrative Agent shall notify each Tranche B Term Lender of such receipt. In the event any Tranche B Term Lender desires to replace or repair waive such Tranche B Term Lender's right to receive such mandatory prepayment, such Tranche B Term Lender shall so advise the equipmentAdministrative Agent in writing no later than the close of business on the third Business Day following receipt of such notice from the Administrative Agent and, fixed assets or real property in respect within five Business Days of which the receipt by Administrative Agent of such cash proceeds were received or mandatory prepayment, the Administrative Agent shall apply the amount that otherwise would have been applied to mandatorily prepay the Tranche B Term Advances of all Tranche B Term Lenders waiving their right to receive such mandatory prepayment to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the further prepayment of the Loans as set forth in this Section 2.05(b)(iv)Tranche A Term Advances to the extent any are then outstanding.
(v) Each prepayment The Borrower shall, on each Business Day, prepay an aggregate principal amount of Loans pursuant the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances, and, if applicable, deposit an amount into the L/C Cash Collateral Account equal to the foregoing provisions amount by which (A) the sum of this Section 2.05(b(1) shall be appliedthe aggregate principal amount of all Revolving Credit Advances, first, to Letter of Credit Advances and Swing Line Advances outstanding on such Business Day and (2) the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order aggregate Available Amount of maturity for the first four installments, second, pro rata to the remaining installments all Letters of Credit outstanding on such Business Day exceeds (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to B) the Revolving Credit Facility in the manner set forth in clause on such Business Day (viiiafter giving effect to any permanent reduction thereof pursuant to Section 2.05 on such Business Day) of this Section 2.05(b)on such Business Day.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) or (v) of this Section 2.05(b2.06(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loansprepay Letter of Credit Advances outstanding at such time until all such Letter of Credit Advances are paid in full, second, shall be applied ratably to the prepay Swing Line Advances outstanding Revolving Credit Loans, andat such time until all such Swing Line Advances are paid in full, third, shall be used applied to Cash Collateralize prepay Revolving Credit Advances comprising part of the remaining same Borrowings and outstanding at such time until all such Revolving Credit Advances are paid in full and, fourth shall be deposited into the L/C ObligationsCash Collateral Account to cash collateralize 100% of the Available Amount of all Letters of Credit outstanding at such time; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b2.06(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans Advances outstanding at such time and the Cash Collateralization 100% cash collateralization of the remaining L/C Obligations in full aggregate Available Amount of all Letters of Credit outstanding at such time (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”"REDUCTION AMOUNT") may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii2.05(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, for which funds are on deposit in the funds held as L/C Cash Collateral Account, such funds shall be applied (without any further action by or notice to or from the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer applicable Issuing Bank or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Mandatory. (i) If any Loan Party No later than the first Business Day following the date of receipt by the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results Net Cash Proceeds in the realization by such Person excess of $5,000,000 in any 12 consecutive month period ("Excess Net Cash Proceeds"), the Borrowers Borrower shall prepay the Advances in an aggregate principal amount of Loans equal to 100% of such Excess Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied Proceeds. Notwithstanding the foregoing, as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or the Borrower shall not be required to make any portion of such mandatory prepayment pursuant to this Subsection 2.04(b)
(i) to the extent the Excess Net Cash Proceeds are reinvested in productive assets used or useful by the Borrower and its Subsidiaries in the conduct of its business within 180 days from the date of the Loan Parties so long as within 365 days after the receipt thereof. If upon receipt of such any Excess Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing elects to reinvest the Administrative Agent; and provided further, however, that any Excess 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 permitted under this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02Subsection 2.04(b)(i), (1) no later than the Borrowers shall prepay an aggregate principal amount first Business Day following receipt of Loans equal to 100% of all such Excess Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b)Proceeds, the Borrowers Borrower shall prepay deliver an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower officers' certificate to the Administrative Agent on or prior to demonstrating the date of receipt derivation of such insurance Excess Net Cash Proceeds and certifying the portion of such proceeds or condemnation awards), which the Borrower elects to reinvest in productive assets and so long as certifying that no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 continuing and (2) upon the expiration of 180 days after the date of receipt of the Excess Net Cash Proceeds certified as being scheduled for reinvestment, the Borrower shall deliver to the Administrative Agent an officers' certificate indicating the amount of Excess Net Cash Proceeds reinvested as of such cash proceeds either (x) to replace or repair date, the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall Excess Net Cash Proceeds have been completed within 180 days after such binding definitive agreement; reinvested, and provided, further, however, that the amount of any cash proceeds not so applied remaining Excess Net Cash Proceeds which shall be immediately applied to prepay the prepayment of the Loans Advances as set forth in this Section 2.05(b)(ivSubsection 2.04(b)(i).
(vii) Each prepayment The Borrower shall prepay (A) all outstanding Advances, upon the termination of Loans pursuant the Equipment Purchase Agreement as a result of a default thereunder by the Borrower and (B) all or a portion of the Advances which corresponds to the foregoing provisions amount of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be refund required to be made pursuant to clause (i), by Ericsson in accordance with the terms of the Equipment Purchase Agreement.
(iii) or (iv) of All prepayments under this Section 2.05(b), 2.04(b) shall be made together with accrued interest to the date of such prepayment on the aggregate principal amount of Net Cash Proceeds received in any calendar year prepaid and required by such clause to shall be applied pro rata between the outstanding Series A Advances and Series B Advances and shall be applied to prepay Loans on reduce the scheduled principal installments of such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made Advances due pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, 2.03 hereof in the case inverse order of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablematurity.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Powertel Inc /De/)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.03 (except Credit Agreement Refinancing Indebtedness)), the Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness, less all Net Cash Proceeds received therefrom reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within three (3) 90 days thereof in connection therewith, within one Business Days of Day following receipt thereof by Holdings the Borrower or such Subsidiary Restricted Subsidiary, (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (viv) and (viiivi) below).
(ii) (x) If the Borrower or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05 (except pursuant to Sections 7.05(j) or 7.05(k))) which results in the realization by such Person of Net Cash Proceeds in excess of an aggregate amount of $25,000,000 per Fiscal Year, the Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Pro Rata Obligations equal to 100% of such Net Cash Proceeds in excess of such $25,000,000 no later than five (5) Business Days following receipt thereof by such Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (iv) and (vii) below); provided that so long as no Event of Default shall have occurred and be continuing, such prepayment (or Cash Collateralization) shall not be required to the extent the Borrower reinvests such Net Cash Proceeds in assets of a kind then used or usable in the business of the Borrower and its Restricted Subsidiaries within 450 days after the date of receipt of such Net Cash Proceeds, or enters into a binding commitment thereof within said 450-day period and subsequently makes such reinvestment within 180 days after the end of such 450-day period; provided that the Borrower notifies the Administrative Agent within five (5) Business Days following receipt by the Borrower or any of its Restricted Subsidiaries of such Net Cash Proceeds of the Borrower’s intent to reinvest such Net Cash Proceeds.
(iii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Domestic Restricted Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of such all Net Cash Proceeds within three received therefrom in excess of $25,000,000 per Fiscal Year no later than five (35) Business Days of following receipt thereof by such Loan Party or such Subsidiary Person (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, provided that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Event of Default shall have occurred and be continuing, such Loan Party prepayment (or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (xCash Collateralization) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or shall not be required to the acquisition extent the Borrower reinvests such Net Cash Proceeds in assets of assets a kind then used or useful usable in the business of the Loan Parties Borrower and its Restricted Subsidiaries within 450 days after the date of receipt of such Net Cash Proceeds, or (y) enter enters into a binding definitive agreement for commitment thereof within said 450-day period and subsequently makes such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed reinvestment within 180 days after the end of such binding definitive agreement450-day period; and provided, further, however, provided that the Borrower notifies the Administrative Agent within five (5) Business Days following receipt by the Borrower or any cash proceeds not so applied shall be immediately applied to the prepayment of its Restricted Subsidiaries of such Net Cash Proceeds of the Loans as set forth in this Section 2.05(b)(iv)Borrower’s intent to reinvest such Net Cash Proceeds.
(viv) Each Subject to the next sentence, each prepayment (or Cash Collateralization, as applicable) of Loans Pro Rata Obligations pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated pro rata as among the Term Loans and any applicable Incremental Tranche and, to each Term Lender on a pro rata basis in each case, to accordance with the principal repayment installments thereof first, amount of the applicable Term Loans held thereby and to scheduled amortization payments in direct order of maturity for the first four installmentsmaturity), second, pro rata to any excess after the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourthapplication of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrower. Except with respect to Term Loans incurred in connection with any Refinancing Amendment or any Joinder Agreement (which, in each case, may be prepaid on a less than pro rata basis if expressly provided for in such Refinancing Amendment or Joinder Agreement), each prepayment (or Cash Collateralization) pursuant to this Section 2.05(b) shall be applied ratably to the Pro Rata Obligations then outstanding entitled to payment (or Cash Collateralization) pursuant to the prior sentence (provided that any prepayment of Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt). Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility Commitments at such timetime (including, in either such casefor the avoidance of doubt, as a result of the termination of any Class of Commitments on the Maturity Date with respect thereto), the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) (in an aggregate amount equal to 105% of the face amount thereof) in an aggregate amount sufficient to reduce the Total Revolving Credit Outstandings to the aggregate Revolving Credit Commitments. If for any reason the Outstanding Amount of L/C Obligations at any time exceed the Letter of Credit Sublimit at such excesstime, the Borrower shall immediately prepay L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce the Outstanding Amount of L/C Obligations to the Letter of Credit Sublimit. If for any reason the Outstanding Amount of Swing Line Loans at any time exceeds the Swing Line Sublimit at such time, the Borrower shall immediately prepay Swing Line Loans in an aggregate amount sufficient to reduce the Outstanding Amount of Swing Line Loans to the Swing Line Sublimit.
(viiivi) Prepayments of the Revolving Credit Facility Facilities made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit LoansLoans held by all Revolving Credit Lenders in accordance with their Applicable Revolving Credit Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions . Prepayments of the Revolving Credit Facilities made pursuant to this Section 2.05(b), ) shall be applied ratably to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required outstanding Revolving Credit Loans. Amounts to be applied pursuant to repay this Section 2.05(b) to the mandatory prepayment of Term Loans but only so long and Revolving Credit Loans shall be applied, as the repatriation of applicable, first to reduce outstanding Base Rate Loans and any amounts remaining after such amount of Net Cash Proceeds would result in material adverse tax consequences application shall be applied to Holdings and its Subsidiaries on a consolidated basisprepay Eurodollar Rate Loans.
Appears in 1 contract
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first(including, for the avoidance of doubt, the payment on the Maturity Date with respect to the Term Facility) in direct inverse order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (iii) or (iv) of this Section 2.05(b) to be applied to prepay Loans exceeds $1,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not be obligated to make such prepaymentpreviously been so applied.
(vii) If for any reason (x) prior to the satisfaction of the Burnoff Condition, the Total Revolving Credit Outstandings at any time exceed the lesser of the sum of the Loan Values of the Eligible Collateral at such time and the Revolving Credit Facility at such time and (y) thereafter, the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Gsi Group Inc)
Mandatory. (i) If [Reserved].
(ii) Subject to clause (x) of this Section 2.05(b), if (1) any Loan Party member of the Bank Group or any of its Domestic Subsidiaries the Company Disposes of any property pursuant or assets (other than (I) the first $20,000,000 of each Content Transaction or (II) any Disposition of any property or assets permitted by Section 7.05(b)(i) to Section 7.05(l7.05(b)(xxxv)) or (2) any Casualty Event occurs, which results in the realization or receipt by such Person any member of the Bank Group of Net Cash Proceeds, the Borrowers shall prepay cause to be prepaid on the date of the realization or receipt by any member of the Bank Group of such Net Proceeds (or, in the event of Net Proceeds which may be reinvested pursuant to the definition thereof, on the date such reinvestment period expires), subject to clause (b)(vii) of this Section 2.05, an aggregate principal amount of Loans equal in an amount to 100% ensure that the Company would not be in breach of the Financial Covenants on a Pro Forma Basis as of the most recent Compliance Date after taking into account such Dispositions and prepayments (but ignoring such Net Proceeds for purposes of determining compliance); provided that if at the time that any such prepayment would be required, the Company (or any Restricted Subsidiary) is required to offer to repurchase Permitted Pari Passu Secured Refinancing Debt (or any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations under Loans required to be secured on a pari passu lien basis with the Initial Loans) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person Disposition or Casualty Event (such prepayments Permitted Pari Passu Secured Refinancing Debt (or Permitted Refinancing thereof) required to be applied as set forth in clauses offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Proceeds on a pro rata basis (v) and (viii) below); provided, however, that, at determined on the election basis of the Borrowers (as notified by aggregate outstanding principal amount of the Lead Borrower to Loans and Other Applicable Indebtedness at such time; provided that the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in net proceeds allocated to the business of Other Applicable Indebtedness shall not exceed the Loan Parties so long as within 365 days after the receipt amount of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing net proceeds required to be allocated to the Administrative Agent; Other Applicable Indebtedness pursuant to the terms thereof, and provided furtherthe remaining amount, howeverif any, that any Net Cash Proceeds not subject to of such definitive agreement or so reinvested net proceeds shall be immediately applied allocated to the Loans in accordance with the terms hereof) to the prepayment of the Loans as set forth in and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.05(b)(i).
2.05(b)(ii) 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 (iiand in any event within ten (10) [Intentionally Omitted]Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof; provided, further that no such prepayment under this Section 2.05(b)(ii) shall be required where the amount of any such prepayment would be less than the greater of $50,000,000 and 2.0% of Total Assets.
(iii) Upon If any member of the incurrence Bank Group incurs or issuance by Holdings or any of its Subsidiaries of issues any Indebtedness (other than Indebtedness expressly after the Closing Date not permitted to be incurred or issued pursuant to Section 7.02)7.03, the Borrowers shall prepay cause to be prepaid an aggregate principal amount of Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt by such member of the Bank Group of such insurance proceeds Net Proceeds.
(iv) If any Borrower incurs or condemnation awardsissues any Refinancing Loans (or Refinancing Equivalent Debt) resulting in Net Proceeds (as opposed to such Refinancing Loans or Refinancing Equivalent Debt arising out of an exchange of existing Loans for such Refinancing Loans or Refinancing Equivalent Debt), and so long as no Default such Borrower (or the Company on its behalf) shall have occurred and cause to be continuing, such Loan Party prepaid an aggregate principal amount of Loans in an amount equal to 100% of all Net Proceeds received therefrom on or such Subsidiary may apply within 365 days prior to the date which is five (5) Business Days after the receipt by such Borrower of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Net Proceeds.
(v) [Reserved].
(vi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) (A) shall be applied, firstapplied either (x) ratably to each Class of Loans then outstanding or (y) as requested by the Company in the notice delivered pursuant to clause (vii) below, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order Class or Classes of maturity for the first four installments, second, pro rata to the remaining installments (excluding Loans with a Maturity Date preceding the Maturity Date installment)of the remaining Classes of Loans then outstanding, third, (B) [reserved] and (C) shall be paid to the Maturity Date installment and fourthAppropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Loans, subject to the Revolving Credit Facility in the manner set forth in clause (viiivii) of this Section 2.05(b). Notwithstanding clause (A) above, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this clause (vi) solely to those applicable Classes of Loans selected by the Company and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt or Refinanced Loans) and (2) any Additional Facility Joinder Agreement or Extension Amendment may provide (including on an optional basis as elected by the Company) for a less than ratable application of prepayments to any Class of Loans established thereunder.
(vivii) Notwithstanding The Company shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made by the other provisions of clause Borrowers pursuant to clauses (i), ii) and (iii) or (iv) of this Section 2.05(b) at least two (2) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made by the Borrowers. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Company’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, so long as no Default under Section 8.01(athe “Declined Proceeds”) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be Loans required to be made pursuant to clause clauses (i), ii) and (iii) or (iv) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 p.m. one Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Loans to be rejected by such Lender. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans. Any Declined Proceeds shall be offered to the Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Loans of such Lender (with such non-declining Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by the Company (such remaining Declined Proceeds, the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess“Company Retained Prepayment Amounts”).
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b)2.05, (i) to the extent that any of or all the repatriation Net Proceeds of an amount any Disposition by a Foreign Subsidiary (“Foreign Disposition”), the Net Proceeds of such Net Cash Proceeds would result in material adverse tax consequences any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local law from being repatriated to Holdings and its Subsidiaries on a consolidated basisthe United States, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Loans at the Loans times provided in this Section 2.05(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long long, as the applicable local law will not permit repatriation to the United States (the Company hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Proceeds will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein and (ii) to the extent that the Company has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event attributable to Foreign Subsidiaries would result in have material adverse tax consequences (as determined in good faith by the Company) with respect to Holdings such Net Proceeds, such Net Proceeds so affected will not be required to be applied to repay Loans at the times provided in this Section 2.05(b) but may be retained by the applicable Foreign Subsidiary.
(ix) Upon becoming aware of a Change of Control:
(A) The Company or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility and its Subsidiaries on declare all outstanding Borrowings, together with accrued interest and all other relevant amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility will be cancelled and all such outstanding amounts will become immediately due and payable.
(x) Notwithstanding anything in this Section 2.05 to the contrary, the Borrower shall not be required to make any mandatory prepayment pursuant to this Section 2.05(b) (other than pursuant to Section 2.05(b)(iv)) (i) if such prepayment is prohibited by the Second Lien Intercreditor Agreement or (ii) prior to the First Lien Termination Date, except to the extent of, and not to exceed, the amount of Net Proceeds, as the case may be, consisting of amounts declined by (A) the First Lien Lenders pursuant to Section 2.05(b)(vii) of the First Lien Credit Agreement, (B) the holders of any debt under any First Lien Additional Facility or any First Lien Refinancing Equivalent Debt, in each case, constituting First Lien Obligations, or pursuant to equivalent provisions of the credit documentation governing such First Lien Additional Facility or First Lien Refinancing Equivalent Debt or (C) the holders of any Permitted Refinancing of Indebtedness described under the foregoing clause (A) or (B), in each case, constituting First Lien Obligations pursuant to equivalent provisions of the credit documentation governing such Permitted Refinancing, which shall in each case be required to be applied as a consolidated basismandatory prepayment hereunder (to the extent otherwise required herein) in an amount equal to the amounts so declined.
Appears in 1 contract
Mandatory. (i) If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.04 (excluding dispositions permitted by Section 7.04(v)); (2) any Casualty Event occurs, that results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Proceeds in excess of $10 million, the Borrower shall cause to be prepaid on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by the Borrower or Restricted Subsidiary of such Net Proceeds an aggregate principal amount of Loans in an amount equal to 100% of all Net Proceeds received in order of application set forth in Section 2.05(b)(v) below; provided, that if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to offer to repurchase Permitted Pari Passu Secured Refinancing Debt (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 the net proceeds of such Disposition or Casualty Event (such Permitted Pari Passu Secured Refinancing Debt (or any Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower (or any Restricted Subsidiary) may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time; provided, 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 Loans in accordance with the terms hereof) to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid (after giving effect to any requirement that the declined amounts be offered to other holders of such Other Applicable Indebtedness), 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 Loans in accordance with the terms hereof; provided, further, that no prepayment shall be required pursuant to this Section 2.05(b)(i) with respect to such portion of such Net Proceeds that the Borrower or the relevant Restricted Subsidiary shall have reinvested or entered into a binding commitment to reinvest or otherwise determined to reinvest (as set forth in a notice from the Borrower to the Administrative Agent to be delivered on or prior to the date which is ten (10) Business Days after the date of receipt of the applicable Net Proceeds), in each case in accordance with the definition of “Net Proceeds” and within the timeframe contemplated thereby.
(ii) If any Loan Party or any Restricted Subsidiary of its Domestic Subsidiaries Disposes a Loan Party incurs or issues any Indebtedness after the Closing Date (other than, in the case of the of any property pursuant to Loan Party or any Restricted Subsidiary, Indebtedness not prohibited under Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds7.02, but including Credit Agreement Refinancing Indebtedness), the Borrowers Borrower shall prepay cause to be prepaid an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three therefrom, in the order of application set forth in the Section 2.05(b)(v) below, on or prior to the date which is five (35) Business Days after the receipt by such Loan Party or Restricted Subsidiary of receipt thereof by Holdings or such Subsidiary Net Proceeds.
(iii) Commencing with respect to the fiscal year ending December 31, 2015 no later than ten (10) Business Days after the date on which the Borrower’s required to deliver financial statements with respect to the end of the applicable fiscal year under Section 6.01(a), the Borrower shall prepay (i) the Loans in an amount equal to 50% of the Excess Cash Flow for such fiscal year (such prepayments percentage reducing to be applied (x) 25% if as set forth in clauses (v) at the end of such fiscal year the Consolidated Net Secured Leverage Ratio is less than 1.25:1.00 but greater than or equal to 1.00:1.00 and (viiiy) below0% if as at the end of such fiscal year the Consolidated Net Secured Leverage Ratio is less than 1.00:1.00), minus (ii) to the extent not financed with the proceeds of Indebtedness, the amount of any voluntary prepayments during such fiscal year of Term Loans and Revolving Credit Loans (to the extent such prepayment of Revolving Credit Loans is accompanied by a permanent reduction in the Revolving Credit Commitments).
(iv) Upon If for any Extraordinary Receipt received by or paid to or for reason the account of aggregate Revolving Credit Exposure at any Loan Party or any of its Domestic Subsidiaries, and not otherwise included time exceeds the aggregate Revolving Credit Commitments then in clause (i) of this Section 2.05(b)effect, the Borrowers Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)excess.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied first ratably to the Term Facility Loans and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof firstscheduled amortization payments in direct order of maturity, second ratably to the Other Term Loans and to the scheduled amortization payments in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, third ratably to the Revolving Credit Facility (and to the permanent reduction of Revolving Credit Commitments) to the Lenders in accordance with their respective Pro Rata Shares (provided, that any prepayment of Term Loans with the manner set forth in Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class (or Classes) of Refinanced Debt), subject to clause (viiiv) of this Section 2.05(b).
(vi) Notwithstanding any of ; provided that the other provisions of clause (i), (iii) or (iv) of Revolving Credit Facility shall only be prepaid pursuant to this Section 2.05(b), so long as no Default under Section 8.01(a) if there are not currently any outstanding Term Loans or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be Other Term Loans at the time the Borrower is required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viivi) If for The Borrower shall notify the Administrative Agent in writing of any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line mandatory prepayment of Loans and L/C Borrowings (and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments Collateralization of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility ) required to be made pursuant to clause clauses (i), ) through (iii) or (iv) of this Section 2.05(b)) promptly, and in no event more than three (3) Business Days, following the amount remaining, if any, after event giving rise to such mandatory prepayment. Each such notice shall specify the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction AmountDeclined Proceeds”) of Term Loans required to be made pursuant to any of clauses (i) through (iii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Term Loan Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day prior to the proposed date of such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Term Loan Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds remaining thereafter may be retained by the Borrowers Borrower and/or applied for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced any purpose not otherwise prohibited by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablethis Agreement.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. The Borrower shall make a prepayment of the Term Loans until paid in full upon the occurrence of any of the following events at the following times and in the following amounts:
(i) If Concurrently with the receipt by any Loan Party or any of its Domestic Subsidiaries Disposes Subsidiary of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsProceeds from any Asset Sale or Extraordinary Receipt, the Borrowers shall prepay in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Proceeds; provided, however, provided that, at notwithstanding the election of the Borrowers (as notified by the Lead Borrower foregoing, no such prepayment shall be required with respect to the Administrative Agent on or prior to the date of such Disposition), and any Net Cash Proceeds so long as (x) no Event of Default shall have occurred and be continuingcontinuing and (y) the Borrower provides written notice to the Administrative Agent of its intent to invest, directly or through one or more of its Subsidiaries, such Loan Party Net Cash Proceeds within 365 days of receipt thereof in assets of the general type used in the business of the Borrower and its Subsidiaries; provided that, if, prior to the expiration of such 365-day period, the Borrower, directly or through its Subsidiaries, shall have entered into a binding agreement providing for such Subsidiary may reinvest investment on or prior to the expiration of an additional 180-day period, such 365-day period shall be extended to the date provided for such investment in such binding agreement; and provided further that, if at the conclusion of such period, all or any portion of such Net Cash Proceeds in assets used or useful have not been so invested, the Borrower shall make a prepayment of the Term Loans at such time in the business of the Loan Parties so long as within 365 days after the receipt amount of such unutilized Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon Concurrently with the incurrence or issuance receipt by Holdings any Loan Party or any Subsidiary of its Subsidiaries any Net Cash Proceeds from any issuance of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause Subsidiary (i) of this excluding Indebtedness permitted by Section 2.05(b6.2), the Borrowers shall prepay in an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) [Reserved].
(ii) If (1) any Loan Consolidated Party or any of its Domestic Subsidiaries Disposes of any property or assets pursuant to Section 7.05(l7.05(i), (p) which or (s), or (2) any Casualty Event occurs, in either case that results in the realization receipt by such Person a Consolidated Party of Net Cash Proceeds, the Borrowers applicable Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent prepaid on or prior to the date that is five (5) Business Days after the date of the receipt by such Borrower or any Restricted Subsidiary of such DispositionNet Proceeds (or such later time that such Borrower is entitled to reinvest Net Proceeds as provided in the definition of “Net Proceeds”), and so long as no Default shall have occurred and an aggregate principal amount of Term Loans in an amount equal to 100% of all such Net Proceeds; provided that if at the time that any such prepayment would be continuingrequired, such Loan Party Borrower is required to offer to repurchase or prepay any Permitted Refinancing of any such Subsidiary 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 proceeds of such Disposition or Casualty Event required to be offered to be so repurchased, “Other Applicable Indebtedness”), then such Borrower may reinvest all or any apply such Net 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, further, that the portion of such Net Cash Proceeds in assets used or useful in net proceeds allocated to the business of Other Applicable Indebtedness shall not exceed the Loan Parties so long as within 365 days after the receipt amount of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing net proceeds required to be allocated to the Administrative Agent; Other Applicable Indebtedness pursuant to the terms thereof, and provided furtherthe remaining amount, howeverif any, that any Net Cash Proceeds not subject to of such definitive agreement or so reinvested net proceeds shall be immediately applied allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans as set forth in and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i).
2.05(b)(ii) 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 (iiand in any event within five (5) [Intentionally Omitted]Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof.
(iii) Upon the incurrence If any Consolidated Party incurs or issuance by Holdings or any of its Subsidiaries of issues any Indebtedness after the Closing Date (other than Indebtedness expressly A) not permitted to be incurred or issued pursuant to Section 7.02)7.03 or (B) that is intended to constitute Credit Agreement Refinancing Indebtedness in respect of, or Replacement Term Loans incurred to refinance (in accordance with the requirements of Section 10.01) any Class of Term Loans, the Borrowers applicable Borrower shall prepay cause to be prepaid an aggregate principal amount of Term Loans (or, in the case of Indebtedness constituting Credit Agreement Refinancing Indebtedness or Replacement Term Loans, the applicable Class of Term Loans) in an amount equal to 100% of all Net Cash Proceeds received therefrom within on or prior to the date that is three (3) Business Days after the receipt by such Consolidated Party of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Net Proceeds.
(iv) Upon If for any Extraordinary Receipt received by or paid to or for reason the account aggregate Effective Amount of Revolving Credit Loans and L/C Obligations of any Loan Party or Class at any time exceeds the aggregate Revolving Credit Commitments of its Domestic Subsidiaries, and not otherwise included such Class then in clause (i) of this Section 2.05(b)effect, the Borrowers applicable Borrower shall promptly prepay an aggregate principal amount Revolving Credit Loans of Loans equal to 100% of such Net that Class and/or Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at Collateralize the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property L/C Obligations in respect of which that Class in an aggregate amount equal to such cash proceeds were received or excess; provided that such Borrower shall not be required to the acquisition Cash Collateralize any such L/C Obligations in respect of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied Class pursuant to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)) unless, after the prepayment in full of all outstanding Revolving Credit Loans of such Class, such aggregate Effective Amount exceeds the aggregate Revolving Credit Commitments of that Class then in effect.
(v) Each If, after the application of any Net Proceeds in accordance with Section 2.05(b)(ii) and Section 2.05(b)(iii) above, the entire amount of Term Loans outstanding hereunder have been repaid in full, any amount of such Net Proceeds in excess of the amount required to effect such repayment in full shall be applied first, to repay outstanding Revolving Credit Loans and second, after any outstanding Revolving Credit Loans have been repaid in full, to Cash Collateralize any outstanding L/C Obligations, provided that such repayment or Cash Collateralization shall not result in any corresponding permanent reduction in the related Revolving Credit Commitments.
(vi) Except as otherwise provided in any Refinancing Amendment, Extension Amendment, any Incremental Amendment or Replacement Term Loans Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied ratably to each Class of Term Loans then outstanding (provided that any prepayment of Term Loans with the foregoing provisions Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt), (B) with respect to each Class of Term Loans, each prepayment pursuant to clause (ii) or (iii) of this Section 2.05(b) shall be applied, first, applied to the Term Facility and any applicable Incremental Tranche and, in each case, to scheduled installments of principal thereof following the principal repayment installments thereof first, date of such prepayment in direct order of maturity for the first four installments, second, pro rata and (C) each such prepayment shall be paid to the remaining installments Lenders in accordance with their respective Pro Rata Shares of such prepayment.
(excluding vii) The applicable Borrower shall notify the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Administrative Agent in writing of any mandatory prepayment of Term Loans or Revolving Credit Facility in the manner set forth in Loans or Cash Collateralization of any outstanding L/C Obligations required to be made by such Borrower pursuant to clause (viiiii) or (iii) of this Section 2.05(b).
) not later than 1:00 p.m. New York City time in the case of any Loan or L/C Obligation denominated in U.S. Dollars, or 11:00 a.m. London time in the case of any Loan or L/C Obligation denominated in an Alternative Currency (vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(fthan Euros), or Event 11:00 a.m. Brussels time in the case of Default any Loan or L/C Obligation denominated in Euros, at least three (3) Business Days prior to the date of such prepayment. Each such notice shall have occurred specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be continuingmade by such Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of such Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all of its Pro Rata Share of any mandatory prepayment (such declined amounts, if, on any date on which a prepayment would otherwise be the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (i), (iiiii) or (iviii)(A) of this Section 2.05(b)) by providing written notice (each, a “Rejection Notice”) to the aggregate Administrative Agent no later than 5:00 p.m. one (1) Business Day after the 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 be rejected. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of the total amount of Net Cash such mandatory prepayment of Term Loans. Any Declined Proceeds received in any calendar year and required shall be retained by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excessapplicable Borrower.
(viii) Prepayments In connection with any mandatory prepayments by the applicable Borrower of the Revolving Credit Facility made Term Loans pursuant to this Section 2.05(b), first, such prepayments shall be applied ratably on a pro rata basis to the L/C Borrowings and then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or LIBOR Rate Loans; provided that if no Lenders exercise the Swing Line Loansright to waive a given mandatory prepayment of the Term Loans pursuant to Section 2.05(b)(vii), secondthen, with respect to such mandatory prepayment, the amount of such mandatory prepayment shall be applied ratably first to Term Loans that are ABR Loans to the outstanding Revolving Credit Loans, and, third, shall full extent thereof before application to Term Loans that are LIBOR Rate Loans in a manner that minimizes the amount of any payments required to be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required made by such Borrower pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable3.05.
(ix) Notwithstanding any other provisions of this Section 2.05(b), (A) to the extent that the Parent has determined that the repatriation or upstreaming to the United States or the United Kingdom of any or all of the Net Proceeds of any Disposition by a Non-U.S. Subsidiary giving rise to a prepayment event pursuant to Section 2.05(b)(ii) (an amount “Affected Disposition”) or the Net Proceeds of any Casualty Event from a Non-U.S. Subsidiary (an “Affected Casualty Event”) is prohibited under any Requirement of Law, would conflict with the fiduciary duties of such Net Cash Proceeds Non-U.S. Subsidiary’s directors, or would result in material adverse tax consequences in, or could reasonably be expected to Holdings and its Subsidiaries on result in, a consolidated basisrisk of personal or criminal liability for any officer, an amount equal to director, employee, manager, member of management or consultant of such Non-U.S. Subsidiary, the portion of such Net Cash Proceeds so affected will not be required to be applied to repay Loans at the Loans times provided in this Section 2.05(b) but shall be retained by the applicable Non-U.S. Subsidiary and shall be available for working capital and general corporate purposes of the Parent and its Restricted Subsidiaries for so long, but only so long long, as such repatriation remains prohibited under Requirement of Law, would conflict with the fiduciary duties of such Non-U.S. Subsidiary’s directors, or would result in, or could reasonably be expected to result in, a risk of personal or criminal liability for the Persons described above (and the Parent hereby agrees to undertake to use commercially reasonable efforts for up to two (2) years to overcome or eliminate any such restrictions (subject to the considerations above and as determined in good faith in the Parent’s reasonable business judgment) to cause such repatriation to the United States and/or the United Kingdom); provided, however, that once the Parent has determined in good faith that such repatriation of any of such affected Net Proceeds is permitted under Requirement of Law, no longer would conflict with the fiduciary duties of such Non-U.S. Subsidiary’s directors, or no longer would result in, or reasonably be expected to result in, a risk of personal or criminal liability for the Persons described above, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of any taxes payable or reserved against, and costs and expenses incurred or payable by Parent or any of its Subsidiaries, in each case as a result thereof) to the repayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that the Parent has determined in good faith that the repatriation or upstreaming of such amount any or all of the Net Cash Proceeds would result in of any Affected Disposition or any Affected Casualty Event could have a material adverse tax consequences cost or regulatory consequence (including the imposition of material withholding taxes and taking into account any tax credit or benefit actually realized in connection with, and at the time of, such repatriation) with respect to Holdings such Net Proceeds, the portion of such Net Proceeds so affected will not be required to be applied to repay Loans at the times provided in this Section 2.05(b) but shall be retained by the applicable Non-U.S. Subsidiary and shall be available for working capital and general corporate purposes of the Parent and its Restricted Subsidiaries on for so long, but only so long, as such repatriation could have such material adverse tax cost or regulatory consequence (and the Parent hereby agrees to undertake to use commercially reasonable efforts for up to two (2) years to overcome or eliminate any such material adverse tax costs or regulatory consequences (subject to the considerations above and as determined in good faith in the Parent’s reasonable business judgment) to cause such repatriation to the United States and/or the United Kingdom); provided, however, that once the Parent has determined in good faith that such repatriation of any of such affected Net Proceeds can be effected without having such material adverse tax cost or regulatory consequence, such repatriation will be promptly effected and such repatriated Net Proceeds will be promptly (and in any event not later than two (2) Business Days after such repatriation) applied (net of any taxes payable or reserved against, and costs and expenses incurred or payable by Parent or any of its Restricted Subsidiaries, in each case as a consolidated basisresult thereof) to the repayment of the Loans pursuant to this Section 2.05(b) to the extent provided herein.
Appears in 1 contract
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay prepay, immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $150,000,000; provided, howeverthat, thatwith respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided furtherprovided, however, 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 2.05(b)(i2.04(b)(i).; and
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Company or any of its the Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.15), the Borrowers Borrower shall prepay an aggregate principal amount of Term A Loans and Revolving Credit Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth Restricted Subsidiary; provided, in the case of each of clauses (vi) and (viiiii) below).
(iv) Upon above, if at the time that any Extraordinary Receipt received by or paid to or for such prepayment would be required, the account of any Loan Party Company or any of its Domestic SubsidiariesRestricted Subsidiaries shall be required to, and not otherwise included in clause or to offer to, repurchase or redeem or repay or prepay any Indebtedness (iincluding any Incremental Facilities or Incremental Equivalent Debt) secured on a pari passu basis with or senior to the Obligations pursuant to the terms of this Section 2.05(bthe documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition, Event of Loss or incurrence or issuance of Indebtedness (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers shall prepay an Company (or any Restricted Subsidiary) may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term A Loans equal (but not the Revolving Loans) and Other Applicable Indebtedness at such time); provided, that if no Term A Loans subject to 100% such mandatory prepayment requirement are outstanding or will be outstanding after the application of such prepayment, then the Company may apply all such Net Cash Proceeds after the repayment of such Term A Loans to repay the Other Applicable Indebtedness; provided, further, that the portion of such Net Cash Proceeds within three (3) Business Days allocated to the Other Applicable Indebtedness shall not exceed the amount of receipt thereof by such Loan Party or such Subsidiary (such prepayments Net Cash Proceeds required to be applied as set forth 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 A Loans and Revolving Loans (in clauses (v) and (viii) belowaccordance with the terms hereof); provided, howeverfurther, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prior to repaid with such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and in any event within ten (10) Business Days after the date of receipt of such insurance proceeds or condemnation awards), rejection) be applied to prepay the Term A Loans and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after Revolving Loans in accordance with the receipt of such cash proceeds either terms hereof (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for extent such replacement, repair or acquisition and such replacement, repair or acquisition shall Net Cash Proceeds would otherwise have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not required to be so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ivif such Other Applicable Indebtedness was not then outstanding).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b)(i) shall be applied, first, ratably to the Term A Facility and any applicable Incremental Tranche and, in each case, Facilities (to the principal repayment of installments thereof firston a pro rata basis) and any Other Applicable Indebtedness, in direct order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b2.04(b).
(viiv) Notwithstanding Each prepayment of Loans pursuant to Section 2.04(b)(ii) shall be applied, first, ratably, to the Term A FacilityFacilities (to the principal repayment of installments thereof on a pro rata basis) and any of Other Applicable Indebtedness and, second, to the other provisions of Revolving Credit Facility in the manner set forth in clause (i), (iii) or (ivvi) of this Section 2.05(b2.04(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Swingline Loans and or L/C Borrowings and/or or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Swingline Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Swingline Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the relevant L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixvii) Notwithstanding any other provisions of this Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make, in accordance with Section 2.05(b2.04(b)(i), an offer to purchase at par the outstanding Incremental Term Loans, if any (a “Waivable Prepayment”), not less than three Business Days prior to the extent that date (the repatriation “Required Prepayment Date”) on which the Borrower is required to make such Waivable Prepayment, the Borrower shall notify the Administrative Agent of an the amount of such Net Cash Proceeds would result prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding outstanding Incremental Term Loans of the amount of such Incremental Term Lender’s Applicable Percentage of such Waivable Prepayment and such Incremental Term Lender’s option to refuse such amount. Each such Incremental Term Lender may exercise such option to refuse such amount by giving written notice to the Company and the Administrative Agent of its election to do so on or before 1:00 p.m., New York City time, on the first Business Day prior to the Required Prepayment Date (it being understood that any Incremental Term Lender which does not notify the Company and the Administrative Agent of its election to exercise such option on or before 1:00 p.m., New York City time, on 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). On the Required Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied (i) in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such Net Cash Proceeds so affected will not be required option (the “Non-Waiving Lenders”), to prepay the Incremental Term Loans held by such Non-Waiving Lenders (which prepayment shall be applied to repay the scheduled installments of principal of the Incremental Term Loans but only so long as specified by the repatriation Incremental Term Supplement), and (ii) in an amount equal to that portion of such amount the Waivable Prepayment that otherwise would have been payable to Incremental Term Lenders that are not Non-Waiving Lenders, to prepay the Term A Loans and Revolving Credit Loans, which prepayment shall be further applied to the scheduled installments of Net Cash Proceeds would result principal of the Term A Loans and Revolving Credit Loans, as applicable, in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisaccordance with Section 2.04(b)(iv).
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Mandatory. (i) If At the end of the Reinvestment Period (if any) applicable to any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsExtraordinary Receipts, the Borrowers Borrower (or the Collateral Manager on its behalf) shall prepay an aggregate principal amount of Loans equal promptly direct the Collateral Agent to 100transfer 50% of the Reinvestment Proceeds in respect of such Net Cash Proceeds within three Extraordinary Receipts (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or determined immediately prior to the date end of such DispositionReinvestment Period (if any), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion ) for application to the repayment of such Net Cash Proceeds in assets used or useful in the business principal of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i)Term Loans.
(ii) [Intentionally Omitted]At the end of the Reinvestment Period (if any) applicable to any Disposition Proceeds, the Borrower (or the Collateral Manager on its behalf) shall promptly direct the Collateral Agent to transfer 100% of the Reinvestment Proceeds in respect of such Disposition Proceeds (determined immediately prior to the end of such Reinvestment Period (if any)) for application towards the repayment of principal of the Term Loans.
(iii) Upon the incurrence If any Group Member incurs or issuance by Holdings or any of its Subsidiaries of issues any Indebtedness after the Closing Date (other than Indebtedness expressly permitted to be incurred or issued pursuant to under Section 7.027.03), the Borrowers Borrower (or
(iv) At the end of the Reinvestment Period (if any) applicable to any Casualty Proceeds, the Borrower (or the Collateral Manager on its behalf) shall prepay an aggregate principal amount of Loans equal promptly direct the Collateral Agent to apply 100% of all Net Cash the Reinvestment Proceeds received therefrom within in respect of such Casualty Proceeds (determined immediately prior to the end of such Reinvestment Period (if any)) to the repayment of principal of the Term Loans.
(v) The Borrower (or the Collateral Manager on its behalf) shall notify the Administrative Agent of each event giving rise to a mandatory prepayment obligation under this Section 2.03(b) no later than the date on which the Borrower (or the Collateral Manager on its behalf) is required to give directions to the Collateral Agent with respect thereto. The Administrative Agent will promptly notify each applicable Lender of such mandatory prepayment and of the amount of such Lender’s Pro Rata Share of each Class of Loans being prepaid. Each prepayment of Term Loans pursuant to this Section 2.03(b) shall be applied pro rata as between the Class A Loans and Class B Loans outstanding at such time and each such prepayment shall be paid to the applicable Lenders in accordance with their respective Pro Rata Shares of each such Class of Loans. If no Term Loans are outstanding at the time of any such mandatory prepayment, the outstanding Commitments will be reduced by the amount of such mandatory prepayment.
(vi) The Borrower shall promptly (and in any event not later than three (3) Business Days Days) notify the Administrative Agent in writing following (1) any Group Member’s receipt of receipt thereof by Holdings or any Reinvestment Proceeds, and such Subsidiary (such prepayments to be applied as notice shall set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid reasonable detail the circumstances giving rise to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b)such proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) proceeds and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt thereof, and (2) the incurrence or issuance of such insurance proceeds or condemnation awardsIndebtedness by any Group Member (other than Indebtedness expressly permitted under Section 7.03), and so long as no Default such notice shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
reasonable detail the circumstances giving rise to such proceeds (v) Each prepayment including, without limitation, the material terms of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility such Indebtedness and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(bobligor thereunder), the aggregate amount of Net Cash Proceeds received in any calendar year such proceeds and required by the date of receipt thereof. Each such clause to be applied to prepay Loans on notice shall specify the date of such date is less than or equal to $1,000,000, prepayment and provide a reasonably detailed calculation of the Borrowers shall not be obligated to make amount of such prepayment. The Administrative Agent will promptly notify each applicable Lender of the contents of the Borrower’s prepayment notice and of such applicable Lender’s Pro Rata Share of the prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made Loans pursuant to this Section 2.05(b), first, 2.03(b) shall not be applied ratably subject to the L/C Borrowings and the Swing Line LoansPriority of Payments; provided, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; andthat, in connection with any such prepayment, the case of prepayments Borrower shall ensure that sufficient funds are available on the next succeeding Interest Payment Date to pay amounts payable under clause (B) of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) Interest Payment Date Priority of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablePayments.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Altus Power, Inc.)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c), (d), (e), (f) or (h) and other Dispositions resulting in the realization by the Borrower and its Subsidiaries (including ELLC) of Net Cash Proceeds not in excess of $2,500,000 in the aggregate over the term of this Agreement for all such Dispositions) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) five Business Days of after receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) five Business Days of after receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below).
(iviii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Domestic Subsidiaries, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds received therefrom within three (3) five Business Days of after receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof)such proceeds, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may apply within 365 180 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct inverse order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iiiii) or (iviii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (NGA Holdco, LLC)
Mandatory. (i) If the Administrative Agent notifies the Borrowers at any Loan Party time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within two (2) Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Borrowers shall Cash Collateralize the L/C Obligations in an aggregate amount at least equal to the amount by which the Total Outstandings exceed the Aggregate Commitments; provided, however, that, subject to the provisions of Section 2.16(a), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(ii) If the Company or any of its Domestic Subsidiaries Disposes of any property pursuant to (including any Equity Interest in any Person) in accordance with and permitted by Section 7.05(l7.02(b), (d) or (f) which results in the realization by such Person of Net Cash ProceedsProceeds (including, for the Borrowers shall prepay an aggregate principal amount avoidance of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provideddoubt, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to realized from the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or Technology Disposition but excluding any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02Excluded Disposal Proceeds), the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(v) below equal to 100% of such Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(v) below).
(iii) Upon the incurrence or issuance by the Company or any of its Subsidiaries of any unsecured Indebtedness and/or Indebtedness that is junior to the Indebtedness incurred hereunder, in each case, pursuant to a capital markets transaction or any substitutions thereof, in each case after the Amendment No. 6 Closing Date, the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(v) below equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be made and applied as set forth in clauses clause (v) and (viiib)(v) below).
(iv) Upon any Extraordinary Receipt received the issuance by or paid to or for the account of any Loan Party Company or any of its Domestic Subsidiaries, and not otherwise included Subsidiaries of any of its Capital Stock after the Amendment No. 6 Closing Date (other than any issuance of Capital Stock in clause (i) of this Section 2.05(bconnection with employee benefit arrangements), the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(v) below equal to 100% of all Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(v) below).
(v) Any Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as the case may be, that are or may be required to be applied in prepayment of the Loans and other Indebtedness pursuant to clauses (b)(ii), (b)(iii) and (b)(iv) above and clause (b)(vi) below shall be deposited immediately upon receipt in a blocked account opened with the Collateral Agent (provided that no such requirement shall apply unless such Net Cash Proceeds and/or Net Insurance/Condemnation Proceeds, when aggregated with all other such Net Cash Proceeds and/or Net Insurance/Condemnation Proceeds that are or may be required to be applied in prepayment, exceed $250,000, in which case all such proceeds shall be deposited in a blocked account) and applied, within three (3) Business Days of receipt (or such later date with respect to the prepayment of the NPA Notes as set forth in the Note Purchase Agreements), in each case, to prepay and, as applicable, cash collateralize on a pro rata basis based on the Applicable Balances (a) Loans and Letters of Credit outstanding hereunder, (b) Indebtedness outstanding under the Existing 2015 Term Loan Credit Agreement, (c) Indebtedness and letters of credit outstanding under the Existing Revolving Credit Agreement, and (d) certain outstanding amounts owing under the NPA Notes, it being agreed and understood that (x) any portion of such proceeds offered to, but declined by, the holders of the NPA Notes (after giving effect to all offers of such proceeds to the other holders of the NPA Notes) shall be used to prepay and, as applicable, cash collateralize Loans and Letters of Credit outstanding under this Agreement, Indebtedness outstanding under the Existing 2015 Term Loan Credit Agreement and Indebtedness and letters of credit outstanding under the Existing Revolving Credit Agreement on a pro rata basis based on the Applicable Balances thereof and (y) any portion of such proceeds allocated to Lenders under this Agreement or to lenders under the Existing Revolving Credit Agreement which exceeds the Applicable Outstandings under this Agreement or the Applicable Outstandings under and as defined in the Existing Revolving Credit Agreement, as applicable and as of the Relevant Completion Date, shall be used to prepay Indebtedness outstanding under the other Transaction Facilities on a pro rata basis based on the Applicable Balances thereof. The portion of any such Net Cash Proceeds allocated to a mandatory offer of prepayment to the holders of the NPA Notes and held in such blocked account with the Collateral Agent pending any such prepayment of the NPA Notes is referred to herein as the “Prepayment Proceeds (NPA Notes) Cash”.
(vi) If the Company or any of its Subsidiaries receives any Net Insurance/Condemnation Proceeds (other than Excluded Insurance/Condemnation Proceeds), the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness equal to 100% of such Net Insurance/Condemnation Proceeds immediately upon receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be made and applied as set forth in clauses clause (vb)(v) and (viii) belowabove); providedprovided that, howeverif, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date any such prepayment is required to be made, the Company notifies the Administrative Agent of receipt its intention to reinvest all or any portion of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property Net Insurance/Condemnation Proceeds in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business (other than cash or Cash Equivalents) of the Loan Parties Company or any of its Subsidiaries up to a maximum of $25,000,000 in respect of each individual event or claim giving rise to Net Insurance/Condemnation Proceeds (y) enter into a binding definitive agreement for such replacementNet Insurance/Condemnation Proceeds or portion thereof, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment“Eligible Reinvestment Proceeds”), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), then so long as (a) no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have has occurred and be continuing, if, on any date on which is continuing and (b) such Eligible Reinvestment Proceeds are held in a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), blocked account opened with the aggregate amount of Net Cash Proceeds received in any calendar year and required by Collateral Agent until such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000time as they are reinvested, the Borrowers shall not be obligated required to make a mandatory prepayment under this clause (b)(vi) in respect of such prepaymentEligible Reinvestment Proceeds to the extent such Eligible Reinvestment Proceeds are so reinvested within 180 days following receipt thereof, or if the Company or any of its Subsidiaries has committed to so reinvest such Eligible Reinvestment Proceeds during such 180-day period and such Eligible Reinvestment Proceeds are so reinvested within 90 days after the expiration of such 180-day period; provided further that, if any Eligible Reinvestment Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay the outstanding principal amount of the Loans and other Indebtedness with the Eligible Reinvestment Proceeds not so reinvested as set forth in clause (b)(v) above (without regard to the immediately preceding proviso). The Collateral Agent shall promptly release any such Eligible Reinvestment Proceeds on deposit in such blocked account upon request by the Company for the purpose of making such reinvestments as contemplated herein; provided that any such request by the Company is accompanied by a certificate, signed by a Responsible Officer, describing, in reasonable detail, the proposed use of such Eligible Reinvestment Proceeds.
(vii) If Any proceeds, Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as the case may be, available for any reason prepayment and/or as Cash Collateral under this Agreement pursuant to clause (b)(v) above shall first be applied in prepayment of outstanding Loans hereunder and, to the Total Revolving Credit Outstandings at any time exceed extent the Revolving Credit Facility at amount of such timeproceeds, in either Net Cash Proceeds or Net Insurance/Condemnation Proceeds exceeds the total outstanding principal amount of such caseLoans, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and use such remaining cash to collateralize any outstanding L/C Borrowings and/or Obligations as provided in Section 2.16. Any such Cash Collateralize Collateral shall be provided to the L/C Obligations (other than Issuers on a pro rata basis by reference to the uncollateralized L/C Borrowings) in an aggregate amount equal to Obligations held by each such excessL/C Issuer.
(viii) Prepayments Upon consummation of the Revolving Credit Facility made pursuant to this Section 2.05(b)Hydra Transaction, first(A) the unpaid principal amount of all outstanding Loans, all interest and other amounts owing or payable under the Loan Documents and all other Obligations (other than contingent indemnification obligations for which no claim has been made) shall automatically become due and payable, and shall be applied ratably immediately repaid in full in cash, (B) the commitment of each Lender to make Loans and any obligation of the L/C Borrowings and the Swing Line Loans, second, Issuers to make L/C Credit Extensions shall be applied ratably to automatically terminated, and (C) the outstanding Revolving Credit Loans, and, third, Company shall be used to immediately Cash Collateralize the remaining outstanding L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If any Loan Party the Parent Guarantor or any of its Domestic Subsidiaries Disposes of any property pursuant to or assets (other than any Disposition of any property or assets permitted by Section 7.05(l7.05 (other than Section 7.05(h) thereof)) not in the ordinary course of business which in the aggregate results in the realization by the Parent Guarantor or such Person Subsidiary of Net Cash ProceedsProceeds (determined as of the date of such Disposition, whether or not such Net Cash Proceeds are then received by the Parent Guarantor or such Subsidiary), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to the Lenders' Portion of 100% of such all Net Cash Proceeds received therefrom within three five (35) Business Days of after receipt thereof by the Borrower or such Person Subsidiary. Each prepayment of Loans pursuant to this Section 2.05(b)(i) arising from the Disposition of Term B Collateral shall be applied, first, to the Term B Facility and, second, ratably to the Term A Facility, the Revolving Credit Facility (such prepayments to be applied as in the manner set forth in clauses (vSection 2.05(b)(ix)) and the Reallocated Facility (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 manner set forth in Section 2.05(b)(x)). Each prepayment of Loans pursuant to this Section 2.05(b)(i) arising from the Disposition of any other Collateral shall be applied, first, ratably to the Term A Facility, the Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05 (b)(x)) and second, to the Term B Facility.
(ii) [Intentionally Omitted]Subject to the provisions of Section 2.05(d), upon the sale by the Parent Guarantor or any of its Subsidiaries of any of its capital stock or other Equity Interests, the Borrower shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received therefrom within five (5) Business Days after receipt thereof by the Parent Guarantor or such Subsidiary. Each prepayment of Loans pursuant to this Section 2.05(b)(ii) arising from a sale by any Person of any of its capital stock or other Equity Interests (other than Illinova and its Subsidiaries) shall be applied, first, ratably to the Term A Facility, the Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05(b)(x)) and second, to the Term B Facility. Each prepayment of Loans pursuant to this Section 2.05(b)(ii) arising from a sale of any of its capital stock or other Equity Interests by Illinova or its Subsidiaries shall be applied, first, to the Term B Facility and second, ratably to the Term A Facility, the Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05(b)(x)).
(iii) Upon Subject to the provisions of Section 2.05(d), upon the incurrence or issuance by Holdings the Parent Guarantor or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.03(a) or (b) (other than any Subordinated Indebtedness), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three five (35) Business Days of after receipt thereof by Holdings the Parent Guarantor or such Subsidiary Subsidiary. Each prepayment of Loans pursuant to this Section 2.05(b)(iii) arising from an incurrence or issuance by any Person of any Indebtedness (such prepayments other than Illinova and its Subsidiaries) shall be applied, first, ratably to be applied as the Term A Facility, the Revolving Credit Facility (in the manner set forth in clauses (vSection 2.05(b)(ix)) and the Reallocated Facility (viiiin the manner set forth in Section 2.05(b)(x)) belowand second, to the Term B Facility. Each prepayment of Loans pursuant to this Section 2.05(b)(iii) arising from an incurrence or issuance by Illinova or its Subsidiaries of any Indebtedness shall be applied, first, to the Term B Facility and second, ratably to the Term A Facility, the Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05(b)(x)).
(iv) Upon any Extraordinary Receipt received Subject to the provisions of Section 2.05(d), upon the incurrence or issuance by or paid to or for the account of any Loan Party Parent Guarantor or any of its Domestic Subsidiaries, and not otherwise included in clause (i) Subsidiaries of this Section 2.05(b)any Subordinated Indebtedness, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 10050% of such all Net Cash Proceeds received therefrom within three five (35) Business Days of after receipt thereof by such Loan Party the Parent or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Subsidiary. Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.05(b)(iv) arising from an incurrence or issuance by any Person (other than Illinova and its Subsidiaries) shall be applied, first, ratably to the Term A Facility, the Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05(b)(x)), and second, to the Term B Facility. Each prepayment of Loans pursuant to this Section 2.05(b)(iv) arising from an incurrence or issuance by Illinova or its Subsidiaries shall be applied, first, to the Term B Facility and any applicable Incremental Tranche andsecond, in each case, ratably to the principal repayment installments thereof firstTerm A Facility, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility (in the manner set forth in clause Section 2.05(b)(ix)) and the Reallocated Facility (viii) of this in the manner set forth in Section 2.05(b2.05(b)(x)).
(viv) Notwithstanding Upon the receipt by the Parent Guarantor or any of the other provisions its Subsidiaries of an Extraordinary Receipt and not otherwise included in clause (i), (ii), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event arising out of Default shall have occurred and be continuing, if, on an Extraordinary Receipt by any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b)Person, the Borrower shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received in therefrom within fifteen (15) Business Days after receipt thereof by the Borrower or such Subsidiary. Each prepayment of Loans pursuant to this Section 2.05(b)(v) arising from an Extraordinary Receipt of the Parent Guarantor or any calendar year of its Subsidiaries (other than Illinova and required by such clause its Subsidiaries) shall be applied, first, ratably to be applied to prepay Loans on such date is less than or equal to $1,000,000the Term A Facility, the Borrowers Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05(b)(x)) and second, to the Term B Facility. Each prepayment of Loans pursuant to this Section 2.05(b)(v) arising from an Extraordinary Receipt of Illinova or its Subsidiaries shall not be obligated applied, first, to make such prepaymentthe Term B Facility and second, ratably to the Term A Facility, the Revolving Credit Facility (in the manner set forth in Section 2.05(b)(ix)) and the Reallocated Facility (in the manner set forth in Section 2.05(b)(x)).
(vi) Upon the making of any Cash Distribution by the Parent Guarantor or any of its Subsidiaries to any holder of Equity Interests in the Parent Guarantor (other than any Cash Distribution expressly permitted by the terms of this Agreement (including, without limitation, Section 7.06(c)), the Borrower shall immediately prepay in full the Facilities and Cash Collateralize in full the Revolving L/C Obligations and the Reallocated L/C Obligations.
(vii) If for any reason the Total aggregate Outstanding Amount of all Revolving Credit Outstandings Loans and Revolving L/C Obligations at any time exceed exceeds the aggregate Revolving Credit Facility at such time, Commitments then in either such caseeffect, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Revolving L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the Revolving L/C Obligations pursuant to this Section 2.05(b)(vii) unless after the prepayment in full of the Revolving Credit Loans the aggregate Outstanding Amount of all Revolving Credit Loans exceeds the aggregate Revolving Credit Commitments then in effect.
(viii) If for any reason the aggregate Outstanding Amount of all Reallocated Loans and Reallocated L/C Obligations at any time exceeds the aggregate Reallocated Facility Commitments then in effect, the Borrower shall immediately prepay Reallocated Loans and/or Cash Collateralize the Reallocated L/C Obligations in an aggregate amount equal to such excess; provided, however, that the Borrower shall not be required to Cash Collateralize the Reallocated L/C Obligations pursuant to this Section 2.05(b)(viii) unless after the prepayment in full of the Reallocated Loans the aggregate Outstanding Amount of all Reallocated Loans exceed the aggregate Reallocated Facility Commitments then in effect.
(ix) Prepayments of the Revolving Credit Facility made pursuant to Section 2.05(a) (other than a prepayment solely in respect of the Revolving Credit Facility) or clause (i), (ii), (iii), (iv), (v) or (vii) of this Section 2.05(b), first, shall be applied ratably to the prepay Revolving L/C Borrowings and the Swing Line Loansoutstanding at such time until all such Revolving L/C Borrowings are paid in full, second, shall be applied ratably to the outstanding prepay Revolving Credit Loans, Loans outstanding at such time until all such Revolving Credit Loans are paid in full and, third, shall be used to Cash Collateralize the remaining Revolving L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to Section 2.05(a) (other than a prepayment solely in respect of the Revolving Credit Facility) or clause (i), (ii), (iii), (iv) or (ivv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Revolving Credit Loans and Revolving L/C Borrowings, Swing Line Loans and Revolving Credit Loans Borrowings outstanding at such time and the Cash Collateralization of the remaining Revolving L/C Obligations have been Cash Collateralized in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “"Revolving Reduction Amount”") may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii); provided, that in lieu of permanently reducing the Revolving Credit Facility in connection with a required prepayment under Section 2.05(a) or (b), the Borrower may Cash Collateralize the Revolving Credit Facility in an amount equal to the applicable Revolving Reduction Amount. Upon the drawing of any Revolving Letter of Credit that which has been Cash Collateralized, the such funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. It is further agreed that all prepayments of the Revolving Credit Facility pursuant to this Section 2.05(b) shall be first applied to that portion of the Revolving Credit Facility which is not secured by the Principal Property. For so long as no Event of Default has occurred and is continuing, Cash Collateral shall be released to the Borrower (i) upon the termination of any such Letter of Credit or the expiration of any such Letter of Credit, in an amount equal to the Cash Collateral pledged in respect of such Revolving Letter of Credit or (ii) upon the permanent reduction of the Revolving Credit Commitments, in an amount equal to the Cash Collateral pledged in respect of such Revolving Credit Commitments.
(ixx) Notwithstanding any Prepayments of the Reallocated Facility made pursuant to Section 2.05(a) (other provisions than a prepayment solely in respect of the Revolving Credit Facility or the Reallocated Facility) or clause (i), (ii), (iii), (iv), (v) or (viii) of this Section 2.05(b), first, shall be applied to prepay Reallocated L/C Borrowings outstanding at such time until all such Reallocated L/C Borrowings are paid in full, second, shall be applied to prepay Reallocated Loans outstanding at such time until all such Reallocated Loans are paid in full and, third, shall be used to Cash Collateralize the extent that Reallocated L/C Obligations and, in the repatriation case of an prepayments of the Reallocated Facility required pursuant to Section 2.05(a) (other than a prepayment solely in respect of the Revolving Credit Facility or the Reallocated Facility) or clause (i), (ii), (iii), (iv) or (v) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all Reallocated Loans and Reallocated L/C Borrowings outstanding at such time and the Reallocated L/C Obligations have been Cash Collateralized in full (the sum of such Net prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the "Reallocation Reduction Amount") may be retained by the Borrower for use in the ordinary course of its business, and the Reallocated Facility shall be automatically and permanently reduced as set forth in Section 2.06(b)(iv); provided, that in lieu of permanently reducing the Reallocated Facility in connection with a required prepayment under Section 2.05(a) or (b), the Borrower may Cash Proceeds would result Collateralize the Reallocated Facility in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion applicable Reallocation Reduction Amount. Upon the drawing of any Reallocated Letter of Credit which has been Cash Collateralized, such Net Cash Proceeds so affected will not be required to funds shall be applied (without any further action by or notice to repay or from the Loans but only Borrower or any other Loan Party) to reimburse the L/C Issuer or the Reallocated Facility Lenders, as applicable. For so long as no Event of Default has occurred and is continuing, Cash Collateral shall be released to the repatriation Borrower (i) upon the termination of any such Letter of Credit or the expiration of any such Letter of Credit, in an amount equal to the Cash Collateral pledged in respect of such Reallocated Letter of Credit or (ii) upon the permanent reduction of the Reallocated Facility Commitments, in an amount equal to the Cash Collateral pledged in respect of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basissuch Reallocated Facility Commitments.
Appears in 1 contract
Samples: Credit Agreement (Dynegy Inc /Il/)
Mandatory. (i) For each fiscal year, beginning with the fiscal year ending October 27, 2009, within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) for such fiscal year and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall prepay an aggregate principal amount of Loans equal to the Applicable ECF Sweep Percentage of Excess Cash Flow for such fiscal year minus voluntary principal repayments of the Loans under the Loan Documents (excluding repayment of Revolving Credit Loans or Swingline Loans, except to the extent there is an equivalent permanent reduction in the commitments related thereto), except to the extent such repayments are not made with internally generated funds for such fiscal year.
(ii) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three on or prior to the date that is five (35) Business Days after the date of receipt thereof by the realization of such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Net Cash Proceeds; provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party prepayment shall not be required on such date to the extent that the Borrower shall have delivered a certificate of a Responsible Officer to the Administrative Agent on or prior to such Subsidiary may reinvest all or any portion of date that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested by the last day of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.02 (excluding any Over-Allotment Amount), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Domestic Subsidiaries, and not otherwise included in clause (iii), or (iii) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three received therefrom on or prior to the date that is five (35) Business Days after the date of receipt thereof by the realization of such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Net Cash Proceeds; provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party prepayment shall not be required on such date to the extent that the Borrower shall have delivered a certificate of a Responsible Officer to the Administrative Agent on or prior to such Subsidiary may apply date that such Net Cash Proceeds are expected to be reinvested in fixed or capital assets within 365 days after the receipt of such cash proceeds either Net Cash Proceeds (x) including to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds Net Cash Proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived); and provided, provided further, however, that any cash proceeds Net Cash Proceeds not so applied by the last day of such period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied to the Term Facility and any applicable Incremental Tranche and, in each case, to the remaining principal repayment installments thereof first, in direct order of maturity for the first four installments, second, Term Loans on a pro rata basis.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to the remaining installments be made pursuant to clauses (excluding the Maturity Date installment), third, to the Maturity Date installment i) through (iv) and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiix) of this Section 2.05(b)) and Sections 2.05(c) or (d) at least three 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 Net Cash Proceeds or Excess Cash Flow, as the case may be. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s pro rata share of the prepayment.
(vivii) Notwithstanding any of the other provisions of clause (i), (iiiii) or (iv) of this Section 2.05(b)) (a) no proceeds realized in a single transaction or series of related transactions in respect of clauses (ii) or (iv) above shall be applied in accordance with such clauses until such proceeds exceed $1,000,000, and (b) so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (iii), (iii) or (iv) of this Section 2.05(b), ) the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, 10,000,000 in the Borrowers shall not be obligated to make such prepayment.
aggregate and (vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, $25,000,000 solely in the case of prepayments any Foreign Subsidiary), the Borrower may defer such prepayment until the first date on which the aggregate amount of the Revolving Credit Facility Net Cash Proceeds or other amounts otherwise required pursuant to under clause (i), (iiiii) or (iv) of this Section 2.05(b) to be applied to prepay Loans exceeds $10,000,000 ($25,000,000 solely in the case of any Foreign Subsidiary), . During such deferral period the Borrower may apply all or any part of such aggregate amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and to prepay Revolving Credit Loans outstanding at such time and may, subject to the Cash Collateralization fulfillment of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as applicable conditions set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash CollateralizedArticle IV, the funds held as Cash Collateral shall be applied reborrow such amounts (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b)which amounts, to the extent that the repatriation of an amount of such originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds when so affected will not be reborrowed) for application as required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.by this Section 2.05
Appears in 1 contract
Samples: Credit Agreement (Brocade Communications Systems Inc)
Mandatory. (i) (A) If (1) any Loan Party Prepayment Asset Sale occurs or (2) any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person any Restricted Company of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such DispositionNet Cash Proceeds an aggregate principal amount of Initial Term Loans in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, and so long as no Default on or prior to such date, the Borrower shall have occurred and be continuing, such Loan Party or such Subsidiary may given written notice to the Administrative Agent of its intention to reinvest all or any a portion of such Net Cash Proceeds in assets used or useful in the business accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into Default has occurred and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (xis then continuing) and (y) as certified 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 Lead Borrower in writing Collateral ranking pari passu with the Lien securing the Initial Term Loans pursuant to the Administrative Agent; and provided further, however, that any terms of the documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower, at its election, may apply the Applicable Asset Sale 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) and the remaining Net Cash Proceeds so received to the prepayment of such Other Applicable Indebtedness; provided, further, that (x) the portion of the Applicable Asset Sale Proceeds (but not subject the other Net Cash Proceeds received) allocated to the Other Applicable Indebtedness shall not exceed the amount of Applicable Asset Sale Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such definitive agreement or so reinvested Net Cash Proceeds shall be immediately applied allocated to the Initial Term Loans in accordance with the terms hereof to the prepayment of the Initial Term Loans as set forth in and the amount of prepayment of the Initial Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i).
) shall be reduced accordingly and (iiy) [Intentionally Omitted].
(iii) Upon to the incurrence extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)prepaid, the Borrowers declined amount shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly (and in any event within three ten (310) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to after the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (xrejection) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay the Initial Term Loans on such date is less than or equal to $1,000,000, in accordance with the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.terms hereof;
Appears in 1 contract
Mandatory. (i) If The Borrower shall, within five Business Days of the receipt by any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, prepay the Borrowers shall prepay an aggregate outstanding principal amount of Loans the Advances in an aggregate amount equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Proceeds; provided, however, thatthat (x) with respect to such Net Cash Proceeds, at the election of the Borrowers Borrower (as notified by the Lead Borrower in writing to the Administrative Agent on or prior to the date of such DispositionAsset Sale), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative AgentAgent and each Lender); and provided further, however, that (y) any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the prepayment of the Loans Advances as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below2.08(b); provided, however, that with respect (A) the Borrower shall deliver irrevocable written notice to the Administrative Agent of any such prepayment at least five (5) Business Days prior to any proceeds of insurance or condemnation awards such prepayment; (or payments in lieu thereof), at the election B) each prepayment of the Borrowers (Advances made in accordance with this Section 2.08(b)(i) shall be applied in inverse order of maturity ratably to the remaining scheduled installments of principal, in each case as notified set forth in such irrevocable written notice of delivered by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in accordance with this Section 2.05(b)(iv).
2.08(b) and (vC) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) Borrower shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason reimburse the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, Lenders in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made respect thereof pursuant to this Section 2.05(b8.04(d), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) [Reserved].
(ii) If any Loan Party the Reporting Company or any of its Domestic Subsidiaries Disposes makes a Disposition of any property pursuant to Section 7.05(l(other than any Disposition of any property permitted by Sections 7.05(a)-7.05(n) or (q) or (r)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Reporting Company shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Reporting Company (as notified by the Lead Borrower Reporting Company to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the Reporting Company or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties Consolidated Group so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Reporting Company in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Reporting Company or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Reporting Company shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Reporting Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Reporting Company or any of its Domestic Subsidiaries, and not otherwise included in clause (iii) or (iii) of this Section 2.05(b), the Borrowers Reporting Company shall prepay an aggregate principal amount of Term Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party the Reporting Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Reporting Company (as notified by the Lead Borrower Reporting Company to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party the Reporting Company or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied ratably to each of the Term A Facility, the Term B Facility and, other than during the Certain Funds Period, the Term A-1 Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro on a pro-rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)basis.
(vi) Notwithstanding any of the other provisions of clause (iii), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (iii), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Term Loans on such date is less than or equal to $1,000,0005,000,000, the Borrowers Company may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (ii), (iii) or (iv) of this Section 2.05(b) to be applied to prepay Term Loans exceeds $5,000,000. During such deferral period the Company may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Company shall immediately prepay the Term Loans in the amount of all Net Cash Proceeds received by the Company and other amounts, as applicable, that are required to be applied to prepay Term Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not be obligated to make such prepaymentpreviously been so applied.
(vii) If for any reason the Total U.S. Revolving Credit Outstandings at any time exceed the U.S. Revolving Credit Facility at such time, the Borrowers shall immediately prepay U.S. Revolving Credit Loans in either an aggregate amount equal to such caseexcess.
(A) If for any reason the Total Multicurrency Revolving Credit Outstandings at any time exceed the Multicurrency Revolving Credit Facility at such time, the Borrowers shall immediately prepay Multicurrency Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
excess and (viiiB) Prepayments of if the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to Administrative Agent notifies the L/C Borrowings and Company at any time that the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full Outstanding Amount of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding denominated in Alternative Currencies at such time and the Cash Collateralization exceeds an amount equal to 103% of the remaining L/C Obligations Alternative Currency Sublimit then in full (the sum effect, then, within two Business Days after receipt of such prepayment amounts, cash collateralization amounts and remaining amount being, collectivelynotice, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the shall prepay Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Loans in an aggregate amount sufficient to reduce such Outstanding Amount as set forth of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableeffect.
(ix) Notwithstanding any other provisions of this Section 2.05(b2.05 mandatory prepayments arising from the receipt of Net Cash Proceeds from any Disposition or Extraordinary Receipts by any Foreign Subsidiary pursuant to Section 2.05(b)(ii) or (iv) (each, a “Foreign Disposition”) shall not be required (1) to the extent the making of any such mandatory prepayment from the Net Cash Proceeds of such Foreign Disposition or Extraordinary Receipts (or the repatriation of funds to effect such payment) would give rise to a material adverse tax consequence (as reasonably determined by the Reporting Company), (2) without duplication (including with respect to any reduction set forth in the definitions of Net Cash Proceeds, Extraordinary Receipts or Excess Cash Flow), to the extent that the repatriation such amounts have been applied to voluntarily prepay any Indebtedness of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal any Foreign Subsidiary or to the portion extent such Foreign Subsidiary has reinvested such amounts in its business or the business of the Reporting Company or its Subsidiaries, provided that no such Net Cash Proceeds so affected will not prepayments and no such reinvestments shall be required to permitted at the time a Default or Event of Default shall then be applied to repay the Loans but only continuing or (3) so long as the applicable local Laws will not permit repatriation thereof to the United States (the Reporting Company hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly file any required forms, obtain any necessary consents and take all similar actions reasonably required by the applicable local Laws to permit such repatriation); provided that if such repatriation of any such amount of affected Net Cash Proceeds would result or Foreign Excess Cash Flow is later permitted under applicable Laws, unless such amounts have previously been applied to prepayments or reinvestments to the extent permitted by clause (2) above, such repatriation will, subject to clause (1) above, be effected as promptly as practicable and such repatriated Net Cash Proceeds or Foreign Excess Cash Flow, as applicable, will be promptly after such repatriation applied to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein.
(x) The Company shall deliver to the Administrative Agent, in material adverse tax consequences connection with each prepayment required under this Section 2.05, (a) a certificate signed by a Responsible Officer of the Company setting forth in reasonable detail the calculation of the amount of such prepayment and (b) (other than in connection with a mandatory prepayment under Section 2.05(b)(i)) at least three (3) Business Days’ prior written notice of such prepayment. Each notice of prepayment shall specify the prepayment date and the principal amount of each Loan (or portion thereof) to Holdings and its Subsidiaries on a consolidated basisbe prepaid.
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property or assets, including, without limitation, any of the Canadian Refractive Centers, whether pursuant to a sale under Section 7.05(l363 of the Bankruptcy Code or otherwise (other than any Disposition of any property or assets permitted by Section 5.02(e)) which results and sales or issuances by Parent of its Equity Interests referred to in the realization by such Person of Net Cash Proceedsclause (ii) below), the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of all such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion Subsidiary. The Interim Order Amount and the Final Order Amount, as applicable, shall be reduced by an amount equal to the amount of such Net Cash Proceeds in from any sale of property or assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 described in this Section 2.05(b)(i)2.04(b)(i) in excess of the amount applied to reduce the aggregate outstanding amount of the Term Loans to zero, unless otherwise agreed by the Required Lenders.
(ii) [Intentionally Omitted]Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than sales or issuances of Equity Interests in connection with customary compensation or benefit programs), the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof.
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.025.02(b)), the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Subsidiary.
(iv) Upon the receipt of any proceeds from an Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b2.04(b), the Borrowers shall prepay an aggregate principal amount of Term Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Subsidiary.
(v) Each prepayment of Loans pursuant to the foregoing provisions of All prepayments under this Section 2.05(bsubsection (b) shall be applied, first, made together with (A) accrued interest to the Term Facility and any applicable Incremental Tranche and, in each case, to date of such prepayment on the principal repayment installments thereof firstamount prepaid, in direct order of maturity for the first four installments, second, pro rata and (B) any amounts owing pursuant to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b9.04(c).
(vi) Notwithstanding anything contained herein to the contrary, Section 2.04(b)(i) – (iv) shall not apply to any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.following transactions:
(viiA) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.incurrence of trade payables;
(viiiB) Prepayments of the Revolving Credit Facility made pursuant vendor or leasehold financing; or
(C) distributions or dividends paid to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; andminority partners or received from majority owners governed by existing operating agreements or practice, in the case of prepayments each of the Revolving Credit Facility required pursuant to clause (iA), (iii) or (iv) of this Section 2.05(bB), and (C), in compliance with the amount remaining, if any, after Budget (subject to the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth proviso in Section 2.06(b)(ii) and Section 2.06(b)(iii5.04(a). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable).
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (TLC Vision Corp)
Mandatory. (i) If Upon any Loan Party sale, transfer or other disposition of any assets or property by the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsRegulated Subsidiary, the Borrowers Borrower shall prepay an aggregate principal amount of Loans the Advances equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of promptly upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments Regulated Subsidiary; provided that the foregoing shall not apply to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) any sale, transfer or other disposition of this Section 2.05(bany asset or property of the Borrower or any Regulated Subsidiary permitted under Sections 5.02(e)(i) through 5.02(e)(v), 5.02(e)(vii) or 5.02(e)(viii) or (ii) any Equity Interests in, or assets or property of, Mountaineer Gas; provided further notwithstanding the Borrowers foregoing, the Borrower and its Regulated Subsidiaries shall prepay an aggregate principal amount be entitled to retain the first $100,000,000 of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party from any other sale, transfer or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property other disposition in respect of which such cash proceeds were any of the assets or property of the Borrower or its Regulated Subsidiaries received or to by the acquisition of assets used or useful Borrower and its Regulated Subsidiaries in the business of the Loan Parties aggregate and shall not be required to repay Term Advances, L/C Borrowings or (y) enter into a binding definitive agreement for such replacement, repair Revolving Advances or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied Cash Collateralize L/C Obligations pursuant to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v2.06(b) Each prepayment of Loans with such proceeds. Prepayments pursuant to the foregoing provisions of this Section 2.05(b2.06(b) shall be applied, applied first, to the repay Term Facility and any applicable Incremental Tranche and, Advances outstanding at such time until all such Term Advances are paid in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installmentsfull, second, pro rata to the remaining installments (excluding the Maturity Date installment)repay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in full, third, to the Maturity Date installment and repay Revolving Advances outstanding at such time until all such Revolving Advances are paid in full, fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, Cash Collateralization amounts being the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If With respect to any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence non-ordinary course sale or issuance by Holdings the Company or any of its Subsidiaries of any Indebtedness of its Equity Interests (other than Indebtedness expressly permitted to be incurred or issued it being understood that the issuance of stock-based compensation, stock options and equity issuances pursuant to Section 7.02)stock plans shall be excluded) after October 31, 2007, (x) if such sale or issuance is consummated prior to the funding of the Term Loan, the Borrowers Aggregate Commitments shall be permanently reduced and (y) if such sale or issuance is consummated after the funding of the Term Loan, the Company shall prepay the Loans, in each case, in an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiiii) below).
(ivii) Upon With respect to any Extraordinary Receipt received incurrence or issuance by or paid to or for the account of any Loan Party Company or any of its Domestic SubsidiariesSubsidiaries of any Indebtedness pursuant to Section 7.03(i) after October 31, and not otherwise included in clause 2007, (ix) if such incurrence or issuance is consummated prior to the funding of this Section 2.05(b)the Term Loan, the Borrowers Aggregate Commitments shall be permanently reduced and (y) if such incurrence or issuance is consummated after the funding of the Term Loan, the Company shall prepay the Loans, in each case, in an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party the Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiiii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, firstapplied to the outstanding principal amount of the Term Loan (and to the extent received prior to the funding of the Term Loan, to the Term Facility and any applicable Incremental Tranche and, permanent reduction of the Aggregate Commitments) in each case, to accordance with the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) terms of this Section 2.05(b)Agreement.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Perkinelmer Inc)
Mandatory. (i) [Reserved].
(ii) If any Loan Party following the Closing Date the Reporting Company or any of its Domestic Subsidiaries Disposes makes a Disposition of any property pursuant to Section 7.05(l(other than any Disposition of any property permitted by Sections 7.05(a)-7.05(m) or (p) or (q)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Reporting Company shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Reporting Company (as notified by the Lead Borrower Reporting Company to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the Reporting Company or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties Consolidated Group so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Reporting Company in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Reporting Company or any of its Subsidiaries of any Indebtedness after the Closing Date (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Reporting Company shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Reporting Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Reporting Company or any of its Domestic SubsidiariesSubsidiaries after the Closing Date, and not otherwise included in clause (iii) or (iii) of this Section 2.05(b), the Borrowers Reporting Company shall prepay an aggregate principal amount of Term Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party the Reporting Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Reporting Company (as notified by the Lead Borrower Reporting Company to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party the Reporting Company or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied ratably to each of the Term A Facility, the Term B Facility, other than during the Capital Funds Period, and the Term A-1 Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro on a pro-rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)basis.
(vi) Notwithstanding any of the other provisions of clause (iii), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (iii), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Term Loans on such date is less than or equal to $1,000,0005,000,000, the Borrowers Company may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (ii), (iii) or (iv) of this Section 2.05(b) to be applied to prepay Term Loans exceeds $5,000,000. During such deferral period the Company may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Company shall immediately prepay the Term Loans in the amount of all Net Cash Proceeds received by the Company and other amounts, as applicable, that are required to be applied to prepay Term Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not be obligated to make such prepaymentpreviously been so applied.
(vii) If for any reason the Total U.S. Revolving Credit Outstandings at any time exceed the U.S. Revolving Credit Facility at such time, the Borrowers shall immediately prepay U.S. Revolving Credit Loans in either an aggregate amount equal to such caseexcess.
(A) If for any reason the Total Multicurrency Revolving Credit Outstandings at any time exceed the Multicurrency Revolving Credit Facility at such time, the Borrowers shall immediately prepay Multicurrency Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
excess and (viiiB) Prepayments of if the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to Administrative Agent notifies the L/C Borrowings and Company at any time that the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full Outstanding Amount of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding denominated in Alternative Currencies at such time and the Cash Collateralization exceeds an amount equal to 103% of the remaining L/C Obligations Alternative Currency Sublimit then in full (the sum effect, then, within two Business Days after receipt of such prepayment amounts, cash collateralization amounts and remaining amount being, collectivelynotice, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the shall prepay Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Loans in an aggregate amount sufficient to reduce such Outstanding Amount as set forth of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableeffect.
(ix) Notwithstanding any other provisions of this Section 2.05(b2.05 mandatory prepayments arising from the receipt of Net Cash Proceeds from any Disposition or Extraordinary Receipts by any Foreign Subsidiary pursuant to Section 2.05(b)(ii) or (iv) (each, a “Foreign Disposition”) shall not be required (1) to the extent the making of any such mandatory prepayment from the Net Cash Proceeds of such Foreign Disposition or Extraordinary Receipts (or the repatriation of funds to effect such payment) would give rise to a material adverse tax consequence (as reasonably determined by the Reporting Company), (2) without duplication (including with respect to any reduction set forth in the definitions of Net Cash Proceeds, Extraordinary Receipts or Excess Cash Flow), to the extent that the repatriation such amounts have been applied to voluntarily prepay any Indebtedness of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal any Foreign Subsidiary or to the portion extent such Foreign Subsidiary has reinvested such amounts in its business or the business of the Reporting Company or its Subsidiaries, provided that no such Net Cash Proceeds so affected will not prepayments and no such reinvestments shall be required to permitted at the time a Default or Event of Default shall then be applied to repay the Loans but only continuing or (3) so long as the applicable local Laws will not permit repatriation thereof to the United States (the Reporting Company hereby agreeing to use commercially reasonable efforts to cause the applicable Foreign Subsidiary to promptly file any required forms, obtain any necessary consents and take all similar actions reasonably required by the applicable local Laws to permit such repatriation); provided that if such repatriation of any such amount of affected Net Cash Proceeds would result in material adverse tax consequences or Foreign Excess Cash Flow is later permitted under applicable Laws, unless such amounts have previously been applied to Holdings prepayments or reinvestments to the extent permitted by clause (2) above, such repatriation will, subject to clause (1) above, be effected as promptly as practicable and its Subsidiaries on a consolidated basissuch repatriated Net Cash Proceeds or Foreign Excess Cash Flow, as applicable, will be promptly after such repatriation applied to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein.
Appears in 1 contract
Samples: Credit Agreement (Arris Group Inc)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.04(a), (b), (c), (d), (e), (f), (h), (i) and (j) which results in the realization by such Person of Net Cash Proceeds), the Borrowers Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on within 90 days after or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary the Borrower and its Subsidiaries may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated consummated, or (y) a binding definitive agreement for the Borrowers or such purchase Subsidiary shall have been entered into committed to such reinvestment in writing (and such purchase shall have been the resulting reinvestment is consummated within 180 270 days after receipt of such binding definitive agreement, in each of cases Net Cash Proceeds) (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive written agreement or so reinvested shall be immediately applied to the prepayment of the Loans within 30 days of receipt thereof (or termination of such written agreement without consummation of purchase) as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence sale or issuance by Holdings or the Borrower of any of its Subsidiaries of any Indebtedness Equity Interests (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02Excluded Equity Issuances), the Borrowers Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of after receipt thereof by Holdings or such Subsidiary the Borrower (such prepayments to be applied as set forth in clauses clause (viv) and below).
(viiiiii) Upon the incurrence or issuance by the Borrower of any Indebtedness (other than Excluded Debt Issuances), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within three Business Days after receipt thereof by the Borrower (such prepayments to be applied as set forth in clause (iv) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic SubsidiariesParty, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiivi) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers Loan Party (as notified by the Lead Borrower Loan Party to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 90 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied to the Term Facility and any applicable Incremental Tranche and, Loans of the Lenders in each case, to accordance with their respective Applicable Percentages. Each mandatory prepayment of Loans in the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata foregoing provisions shall be applied to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)Scheduled Term Loan Installments on a pro rata basis.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, Aggregate Commitments then in either such caseeffect, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of ; provided, however, that the Revolving Credit Facility made Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, unless after the prepayment in full of the Revolving Credit Loans and the Swing Line Loan the Total Outstandings exceed the Aggregate Commitments then in effect.
(vii) If the Borrower fails to obtain any approval, consent or authorization from any Governmental Authority which is necessary or required in order to permit the Borrower to incur Obligations hereunder on or before December 31 of each calendar year, then the Borrower shall immediately prepay all outstanding Loans and Cash Collateralize all L/C BorrowingsObligations to the extent, Swing Line and only to the extent, such outstanding Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained are not authorized by the Borrowers for use in the ordinary course of its businessthen effective necessary or required approvals, consents and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 authorizations from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablesuch Governmental Authorities.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If any Loan Credit Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l(other than any Disposition expressly permitted by Subsections 7.05(a) through (i) and (k)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers (as notified by the Lead Borrower Borrowers to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Credit Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties to fund a Permitted Acquisition so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (xA) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Borrowers in writing to the Administrative Agent) or (B) a definitive agreement to reinvest such Net Cash Proceeds within 180 days of the date of such agreement shall have been entered into; and provided further, however, that any Net Cash Proceeds not subject (1) so reinvested or (2) reinvested pursuant to such definitive agreement or so reinvested shall within 180 days of the date of such agreement, shall, in each case, be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence sale or issuance by Holdings the Partnership or any of its Subsidiaries of any Indebtedness of its Equity Interests (other than Indebtedness expressly permitted any sales or issuances of Equity Interests (A) to be incurred the Partnership or any of its Subsidiaries, (B) to the extent required by the express terms of the Partnership Agreement, (C) for the purpose of financing all or a portion of any Permitted Acquisition completed within 180 days before or 365 days after receipt of such Net Cash Proceeds, (D) to the General Partner in order for the General Partner to continue to hold two percent (2%) of the issued Partnership Common Units, and (E) to directors, consultants and employees of the General Partner pursuant to Section 7.02the Partnership’s Long Term Incentive Plan), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Partnership or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below).
(iviii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Credit Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Credit Party or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and x) so long as no Default shall have occurred and be continuingcontinuing and the Net Cash Proceeds of any such Extraordinary Receipt do not exceed $500,000, such Loan proceeds shall not be required to be so applied on such date to the extent that a Responsible Officer of such Credit Party has delivered a certificate to the Administrative Agent on or prior to such Subsidiary may apply date stating that such proceeds shall be applied or shall be committed to be applied within 365 180 days after the receipt of such cash proceeds either (x) thereof to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to (which certificate shall set forth the acquisition of assets used or useful in the business estimates of the Loan Parties or proceeds to be so expended), and (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition so long as no Default shall have been completed within 180 days after occurred and be continuing, and to the extent that (a) the Net Cash Proceeds of any such binding definitive agreement; Extraordinary Receipt exceeds $500,000, and provided(b) a Responsible Officer of such Credit Party has delivered to the Administrative Agent and the Administrative Agent a certificate on or prior to the date the application would otherwise be required pursuant to this Section 2.05(b)(iii) in the form described in clause (x) above, then the entire amount of such proceeds and not just the portion in excess of $500,000 shall be deposited with the Administrative Agent pursuant to a cash collateral arrangement reasonably satisfactory to the Administrative Agent and the Administrative Agent whereby such proceeds shall be disbursed to such Credit Party from time to time as needed to pay or reimburse such Credit Party in connection with the replacement or restoration of the respective properties or assets (pursuant to such certification requirements as may be established by the Administrative Agent and the Administrative Agent), provided further, howeverthat at any time while an Event of Default has occurred and is continuing, that the Required Lenders may direct the Administrative Agent (in which case the Administrative Agent shall, and is hereby authorized by the Credit Parties to, follow said directions) to apply any cash or all proceeds not so applied shall be immediately applied then on deposit in such collateral account to the prepayment of the Loans (such prepayments to be applied as set forth in clauses (iv) and (vi) below), and provided further, that if all or any portion of the Net Cash Proceeds of any Extraordinary Receipt not required to be applied as a mandatory repayment pursuant to the second preceding proviso (whether pursuant to clause (x) or (y) thereof) are not so used within 180 days after (A) the date received or (B) the date so committed to be used pursuant to a definitive agreement, to the extent so committed within 180 days of the date received, then such remaining portion not used shall be applied on the final date of such 180 day period as a mandatory repayment in accordance with the requirements of this Section 2.05(b)(iv2.05(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.05(b)(i) shall be applied, first, to the Term Facility and extent the Administrative Agent, in its sole determination, determines that such amounts relate to assets acquired in a Permitted Acquisition or of a Borrower so acquired, such amounts shall be used to repay the amounts outstanding under any applicable Incremental Tranche Acquisition Loan used to fund such Permitted Acquisition, second, to the extent any such Acquisition Loans are paid in full, any such amounts shall be applied pro rata among all other outstanding Acquisition Loans until paid in full, and, in each either case, all such repayments applied to outstanding Acquisition Loans shall be applied to the principal repayment installments thereof first, in direct inverse order of maturity for the first four installmentsmaturity, second, pro rata to the remaining installments (excluding the Maturity Date installment), and third, to the Maturity Date installment and fourthoutstanding Revolving Loans. Each prepayment of Loans pursuant to Section 2.05(b)(ii) or (iii) shall be applied, first, to the Revolving Credit Facility extent the Administrative Agent, in its sole determination, determines that such amounts relate to assets acquired in a Permitted Acquisition or of a Borrower so acquired, such amounts shall be used to repay the manner set forth amounts outstanding under any Acquisition Loan used to fund such Permitted Acquisition, and, second, to the extent any such Acquisition Loans are paid in clause (viii) full, any such amounts shall be applied pro rata among all outstanding Loans, and, in either case, all such repayments applied to outstanding Acquisition Loans shall be applied to the principal repayment installments thereof in inverse order of this Section 2.05(b)maturity.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the lesser of (A) the Borrowing Base at such time and (B) the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) and Swing Line Loans in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C ObligationsObligations and Swing Line Loans; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations and Swing Line Loans in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers any Borrower or any other Loan Credit Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions applicable and upon nonpayment of this Section 2.05(b)a Swing Line Loan in accordance with the terms hereof, to the extent that the repatriation of an amount of such Net funds on deposit as Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to Collateral for Swing Line Loans shall be applied to repay and reimburse the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisSwing Line Lender.
Appears in 1 contract
Mandatory. (i) If [Intentionally Omitted].
(ii) In the event and on each occasion that any Loan Party Net Cash Proceeds are received by or on behalf of the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in Subsidiary, the realization by Borrower shall, within five Business Days after such Person of Net Cash ProceedsProceeds are received, pay or cause to be paid to the Borrowers shall prepay Administrative Agent for the account of the Lender Parties an aggregate principal amount of Loans the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account, in the case of the Revolving Credit Facility (to be applied in accordance with Section 2.07(b)(v)), in an aggregate amount equal to 100% of such Net Cash Proceeds, provided that, in the case of any event described in clause (a) or (c) of the definition of “Net Cash Proceeds”, if the Borrower or any Subsidiary applies the Net Cash Proceeds from such event (or a portion thereof) (i) within three 365 days after receipt of such Net Cash Proceeds and (3ii) Business Days of receipt thereof by such Person (such prepayments at a time when no Default has occurred and is continuing, to acquire real property, equipment or other tangible assets to be applied as set forth used in clauses the business of the Borrower and the Subsidiaries (v) and (viii) below); provided, however, provided that, at the election of the Borrowers (as notified by the Lead Borrower has delivered to the Administrative Agent on or prior within five Business Days after such Net Cash Proceeds are received a certificate of a Responsible Officer stating its intention to do so and certifying that no Default has occurred and is continuing), then no prepayment shall be required pursuant to this paragraph in respect of the date Net Cash Proceeds in respect of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party event (or such Subsidiary may reinvest all or any the portion of such Net Cash Proceeds specified in assets used or useful in such certificate, if applicable) except to the business extent of the Loan Parties so long as within 365 days after the receipt of any such Net Cash Proceeds, either (x) such purchase shall Proceeds that have not been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified so applied by the Lead Borrower end of such 365 days (or, if committed during such 365 days to be so applied, within 90 days of the end of such 365 days), at which time a prepayment shall be required in writing an amount equal to the Administrative Agent; and provided further, however, that any such Net Cash Proceeds that have not subject to been so applied. Each such definitive agreement or so reinvested prepayment shall be immediately applied first to the prepayment installments of Term Facility pro rata and second to the Loans Revolving Credit Facility as set forth in this Section 2.05(b)(i).
clause (iiv) [Intentionally Omitted]below.
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)The Borrower shall, the Borrowers shall on each Business Day, prepay an aggregate principal amount of Loans the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances and deposit an amount in the L/C Cash Collateral Account in an amount equal to 100% the amount by which (A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available Amount of all Net Cash Proceeds received therefrom within three Letters of Credit then outstanding exceeds (3B) the Revolving Credit Facility on such Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Day.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic SubsidiariesThe Borrower shall, and not otherwise included in clause (i) of this Section 2.05(b)on each Business Day, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower pay to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful for deposit in the business L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account to equal the amount by which the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Loan Parties or (y) enter into a binding definitive agreement for Letter of Credit Facility on such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Business Day.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, clause (ii) or (iii) above shall be first applied ratably to prepay Letter of Credit Advances then outstanding until such Advances are paid in full, second applied to prepay Swing Line Advances then outstanding until such Advances are paid in full, third applied to prepay Revolving Credit Advances then outstanding comprising part of the same Borrowings until such Advances are paid in full and fourth deposited in the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used Cash Collateral Account to Cash Collateralize the remaining L/C ObligationsAvailable Amount of the Letters of Credit then outstanding; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iiiii) or (iv) of this Section 2.05(b)above, the amount remaining, remaining (if any, ) after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans the Advances then outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full aggregate Available Amount of Letters of Credit then outstanding (the sum of such prepayment amountsamounts in respect of Revolving Credit Advances, cash collateralization Letter of Credit Advances and Swing Line Advances, Cash Collateralization amounts and remaining amount being, collectively, being referred to herein as the “Revolving Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, Borrower and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii2.06(b)(iv). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the for which funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse are on deposit in the L/C Issuer Cash Collateral Account, such funds shall be applied to reimburse the relevant Issuing Bank or the Revolving Credit Lenders, as applicable.
(ixvi) Notwithstanding any other provisions All prepayments under this subsection (b) shall be made together with accrued interest and Letter of this Section 2.05(b), Credit Fees to the extent that the repatriation of an amount date of such Net Cash Proceeds would result in material adverse tax consequences prepayment on the principal amount prepaid, together with any amounts owing pursuant to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisSection 10.04(c).
Appears in 1 contract
Samples: Credit Agreement (Neustar Inc)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Subsidiaries Disposes of any property pursuant to (including any Equity Interest in any Person) in accordance with and permitted by Section 7.05(l7.02(b), (d) or (f) which results in the realization by such Person of Net Cash Proceeds (including, for the avoidance of doubt, any Net Cash Proceeds realized from the Technology Disposition but excluding any Net Cash Proceeds realized from a Permitted Sale and Leaseback Transaction under clause (a)(i) of the definition thereof), the Borrower shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(iv) below equal to 100% of such Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(iv) below).
(ii) Upon the incurrence or issuance by the Company or any of its Subsidiaries of any unsecured Indebtedness and/or Indebtedness that is junior to the Indebtedness incurred hereunder, in each case pursuant to a capital markets transaction or any substitutions thereof, in each case after the Amendment No. 3 Closing Date, the Borrower shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(iv) below equal to 100% of all Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(iv) below).
(iii) Upon the issuance by the Company or any of its Subsidiaries of any of its Capital Stock after the Amendment No. 3 Closing Date (other than any issuance of Capital Stock in connection with employee benefit arrangements), the Borrower shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(iv) below equal to 100% of all Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(iv) below).
(iv) Any Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as the case may be, required to be applied in prepayment of the Loans and other Indebtedness pursuant to clauses (b)(i), (b)(ii) and (b)(iii) above and clause (b)(v) below shall be deposited immediately upon receipt in a blocked account opened with the Collateral Agent and applied within three (3) Business Days of receipt (or such later date with respect to the prepayment of the NPA Notes as set forth in the Note Purchase Agreements), in each case, to prepay or cash collateralize on a pro rata basis based on the Applicable Balances (a) Loans outstanding hereunder, (b) Indebtedness and letters of credit outstanding under the Existing 2013 Revolving Credit Agreement, (c) Indebtedness and letters of credit outstanding under the Existing 2015 Revolving Credit Agreement, and (d) certain outstanding amounts owing under the NPA Notes, it being agreed and understood that (x) any portion of such proceeds offered to, but declined by, the holders of the NPA Notes (after giving effect to all offers of such proceeds to the other holders of the NPA Notes) shall be used to prepay and, as applicable, cash collateralize Loans under this Agreement, Indebtedness and letters of credit outstanding under the Existing 2013 Revolving Loan Credit Agreement and Indebtedness and letters of credit outstanding under the Existing 2015 Revolving Credit Agreement on a pro rata basis based on the Applicable Balances thereof and (y) any portion of such proceeds allocated to lenders under the Existing 2013 Revolving Credit Agreement or to lenders under the Existing 2015 Revolving Credit Agreement which exceeds the Applicable Outstandings (under and as defined in the Existing 2013 Revolving Credit Agreement and the Existing 2015 Revolving Credit Agreement, respectively) as of the Relevant Completion Date, shall be used to prepay Indebtedness outstanding under the other Transaction Facilities on a pro rata basis based on the Applicable Balances thereof. The portion of any such Net Cash Proceeds allocated to a mandatory offer of prepayment to the holders of the NPA Notes and held in such blocked account with the Collateral Agent pending any such prepayment of the NPA Notes is referred to herein as the “Prepayment Proceeds (NPA Notes) Cash”.
(v) If the Company or any of its Subsidiaries receives any Net Insurance/Condemnation Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness equal to 100% of such Net Cash Insurance/Condemnation Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be made and applied as set forth in clauses clause (vb)(iv) and (viii) belowabove); provided, however, provided that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or if, prior to the date any such prepayment is required to be made, the Company notifies the Administrative Agent of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may its intention to reinvest all or any portion of such the Net Cash Insurance/Condemnation Proceeds in assets used or useful in the business (other than cash or Cash Equivalents) of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings Company or any of its Subsidiaries up to a maximum of any Indebtedness $25,000,000 in respect of each individual event or claim giving rise to Net Insurance/Condemnation Proceeds (other than Indebtedness expressly permitted to be incurred such Net Insurance/Condemnation Proceeds or issued pursuant to Section 7.02portion thereof, the “Eligible Reinvestment Proceeds”), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and then so long as (a) no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have has occurred and be continuing, if, on any date on which is continuing and (b) such Eligible Reinvestment Proceeds are held in a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), blocked account opened with the aggregate amount of Net Cash Proceeds received in any calendar year and required by Collateral Agent until such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000time as they are reinvested, the Borrowers shall not be obligated required to make a mandatory prepayment under this clause (b)(v) in respect of such prepayment.
(vii) If for Eligible Reinvestment Proceeds to the extent such Eligible Reinvestment Proceeds are so reinvested within 180 days following receipt thereof, or if the Company or any reason of its Subsidiaries has committed to so reinvest such Eligible Reinvestment Proceeds during such 180-day period and such Eligible Reinvestment Proceeds are so reinvested within 90 days after the Total Revolving Credit Outstandings at expiration of such 180-day period; provided further that, if any time exceed Eligible Reinvestment Proceeds have not been so reinvested prior to the Revolving Credit Facility at such time, in either such caseexpiration of the applicable period, the Borrowers shall immediately promptly prepay Revolving Credit Loans, Swing Line the outstanding principal amount of the Loans and L/C Borrowings and/or Cash Collateralize other Indebtedness with the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount Eligible Reinvestment Proceeds not so reinvested as set forth in Section 2.06(b)(iiclause (b)(v) and Section 2.06(b)(iiiabove (without regard to the immediately preceding proviso). Upon The Collateral Agent shall promptly release any such Eligible Reinvestment Proceeds on deposit in such blocked account upon request by the drawing Company for the purpose of making such reinvestments as contemplated herein; provided that any Letter of Credit that has been Cash Collateralizedsuch request by the Company is accompanied by a certificate, signed by a Responsible Officer, describing, in reasonable detail, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount proposed use of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisEligible Reinvestment Proceeds.
Appears in 1 contract
Mandatory. (i) If (x) any Loan Credit Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l(other than any Disposition expressly permitted by Subsections 7.05(a) through (i) and (k)) which results in the realization by such Person of Net Cash Proceeds or (y) there is a disposition of real property which any Credit Party manages or operates pursuant to an Exclusive Management Agreement but does not own, to the extent such disposition results in the realization by any Credit Party or any of its Subsidiaries of Net Cash Proceeds, from all such dispositions, in excess of $10,000,000 in the immediately preceding 365 days, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers (as notified by the Lead Borrower Borrowers to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Credit Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties to fund a Permitted Acquisition so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (xA) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Borrowers in writing to the Administrative Agent) or (B) a definitive agreement to reinvest such Net Cash Proceeds within 180 days of the date of such agreement shall have been entered into; and provided further, however, that any Net Cash Proceeds not subject (1) so reinvested or (2) reinvested pursuant to such definitive agreement or so reinvested shall within 180 days of the date of such agreement, shall, in each case, be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence sale or issuance by Holdings the Partnership or any of its Subsidiaries of any Indebtedness of its Equity Interests (other than Indebtedness expressly permitted any sales or issuances of Equity Interests (A) to be incurred the Partnership or any of its Subsidiaries, (B) to the extent required by the express terms of the Partnership Agreement, (C) for the purpose of financing all or a portion of any Permitted Acquisition completed within 180 days before or 365 days after receipt of such Net Cash Proceeds, (D) to the General Partner in order for the General Partner to continue to hold two percent (2%) of the issued Partnership Common Units, and (E) to directors, consultants and employees of the General Partner pursuant to Section 7.02the Partnership’s Long Term Incentive Plan), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Partnership or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below).
(iviii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Credit Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Credit Party or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and x) so long as no Default shall have occurred and be continuingcontinuing and the Net Cash Proceeds of any such Extraordinary Receipt do not exceed $500,000, such Loan proceeds shall not be required to be so applied on such date to the extent that a Responsible Officer of such Credit Party has delivered a certificate to the Administrative Agent on or prior to such Subsidiary may apply date stating that such proceeds shall be applied or shall be committed to be applied within 365 180 days after the receipt of such cash proceeds either (x) thereof to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to (which certificate shall set forth the acquisition of assets used or useful in the business estimates of the Loan Parties or proceeds to be so expended), and (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition so long as no Default shall have been completed within 180 days after occurred and be continuing, and to the extent that (a) the Net Cash Proceeds of any such binding definitive agreement; Extraordinary Receipt exceeds $500,000, and provided(b) a Responsible Officer of such Credit Party has delivered to the Administrative Agent and the Administrative Agent a certificate on or prior to the date the application would otherwise be required pursuant to this Section 2.05(b)(iii) in the form described in clause (x) above, then the entire amount of such proceeds and not just the portion in excess of $500,000 shall be deposited with the Administrative Agent pursuant to a cash collateral arrangement reasonably satisfactory to the Administrative Agent and the Administrative Agent whereby such proceeds shall be disbursed to such Credit Party from time to time as needed to pay or reimburse such Credit Party in connection with the replacement or restoration of the respective properties or assets (pursuant to such certification requirements as may be established by the Administrative Agent and the Administrative Agent), provided further, howeverthat at any time while an Event of Default has occurred and is continuing, that the Required Lenders may direct the Administrative Agent (in which case the Administrative Agent shall, and is hereby authorized by the Credit Parties to, follow said directions) to apply any cash or all proceeds not so applied shall be immediately applied then on deposit in such collateral account to the prepayment of the Loans (such prepayments to be applied as set forth in clauses (iv) and (vi) below), and provided further, that if all or any portion of the Net Cash Proceeds of any Extraordinary Receipt not required to be applied as a mandatory repayment pursuant to the second preceding proviso (whether pursuant to clause (x) or (y) thereof) are not so used within 180 days after (A) the date received or (B) the date so committed to be used pursuant to a definitive agreement, to the extent so committed within 180 days of the date received, then such remaining portion not used shall be applied on the final date of such 180 day period as a mandatory repayment in accordance with the requirements of this Section 2.05(b)(iv2.05(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.05(b)(i), (ii) or (iii) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, remaining Scheduled Repayments in each case, to the principal repayment installments thereof first, respect of all Acquisition Draws in direct inverse order of maturity for (and inverse order of the first four installmentsdate of each draw to the extent any two or more Acquisition Draws have any identical maturity dates), second, pro rata to the remaining installments (excluding the Maturity Date installment), any Swing Line Loans and third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)outstanding Working Capital Draws.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility Aggregate Commitments at such time, in either such casetime or the Total Working Capital Outstandings at any time exceed the Borrowing Base, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) and Swing Line Loans in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility Subject to clause (iv) above, prepayments made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C ObligationsObligations and Swing Line Loans; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations and Swing Line Loans in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers any Borrower or any other Loan Credit Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions applicable and upon nonpayment of this Section 2.05(b)a Swing Line Loan in accordance with the terms hereof, to the extent that the repatriation of an amount of such Net funds on deposit as Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to Collateral for Swing Line Loans shall be applied to repay and reimburse the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisSwing Line Lender.
Appears in 1 contract
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes disposes of any property pursuant (other than any Disposition of any property permitted by Section 7.05 (other than clause (d) thereof) and other than proceeds of any Approved Asbestos Insurance Settlement so long as such proceeds are used or committed to Section 7.05(lbe used to reimburse the US Borrower or any of its Subsidiaries or make payments in respect of related claims against the US Borrower or any of its Subsidiaries and defense costs related thereto) which that results in the realization by such Person the Loan Parties and their respective Subsidiaries of Net Cash ProceedsProceeds in excess of $10,000,000 in any Fiscal Year (excluding any portion thereof that is reinvested as provided below), the Borrowers applicable Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3to the extent in excess of $10,000,000 in such Fiscal Year) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of either the Borrowers US Borrower or the European Borrower (as notified by the Lead such Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as as, within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied subject to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness Debt (other than Indebtedness Debt expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers applicable Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viii) below); provided, however, that with respect to .
(iii) Upon any Extraordinary Receipt (other than proceeds of insurance any Approved Asbestos Insurance Settlement or condemnation awards (or payments in lieu thereof)Asbestos Judgment, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default such proceeds are used or committed to be used to reimburse the US Borrower or any of its Subsidiaries or make payments in respect of related claims against the US Borrower or any of its Subsidiaries and defense costs related thereto, as applicable) received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the applicable Borrower shall have occurred and be continuing, prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary may apply within 365 days after the receipt of (such cash proceeds either (x) prepayments to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so be applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ivclauses (iv) and (viii) below).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term A Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installmentson a pro-rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(viv) Notwithstanding any The US Borrower or the European Borrower shall, on the first Business Day of each week, prepay an aggregate principal amount of the other provisions Revolving Credit Loans comprising part of clause the same Borrowings, the L/C Advances and the Swing Line Loans and deposit an amount in the L/C Collateral Account in an amount equal to the amount by which the Dollar Equivalent (i)which shall be advised by the Administrative Agent from time to time as requested by the Borrowers) of the sum of the aggregate principal amount of (x) the Revolving Credit Loans, (iiiy) or the L/C Advances and (ivz) the Swing Line Loans then outstanding plus the Dollar Equivalent of this Section 2.05(b)the aggregate Available Amount of all Letters of Credit then outstanding exceeds the Revolving Credit Facility on the date of such determination; provided that upon the occurrence and during the continuance of a Default, so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default such determination and payment shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant by the applicable Borrower on each Business Day; and provided further, that if the Administrative Agent notifies the Borrowers at any time that the Dollar Equivalent of the Outstanding Amount of all Loans and L/C Obligations at such time exceeds an amount equal to clause (i), (iii) or (iv) 105% of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received the Revolving Credit Commitments then in any calendar year and required by effect, then, within two Business Days after receipt of such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000notice, the Borrowers shall prepay an aggregate principal amount of the Revolving Credit Loans comprising part of the same Borrowings, the L/C Advances and the Swing Line Loans and deposit an amount in the L/C Collateral Account in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the aggregate amount of the Revolving Credit Commitments then in effect.
(vi) The European Borrower shall, on the first Business Day of each week, prepay an aggregate principal amount of the Revolving Credit Borrowings comprising part of the same Borrowings, the L/C Advances and the Swing Line Borrowings and deposit an amount in the L/C Collateral Account in an amount equal to the amount by which the Dollar Equivalent (which shall be obligated advised by the Administrative Agent from time to make time as requested by the Borrowers) of the sum of the aggregate principal amount of (x) the Revolving Credit Borrowings, (y) the L/C Advances and (z) the Swing Line Borrowings then outstanding and made for the account of the European Borrower, plus the Dollar Equivalent of the aggregate Available Amount of all Letters of Credit then outstanding for the account of the European Borrower exceeds the European Revolving Loan Value on the date of such prepaymentdetermination; provided that upon the occurrence and during the continuance of a Default, such determination and payment shall be made by the European Borrower on each Business Day.
(vii) If If, for any reason reason, the Total Revolving Credit Outstandings denominated in EurosAlternative Currencies at any time exceed the European Revolving Credit Facility Loan Value at such time, in either such case, the Borrowers European Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments All prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in . In the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b), (A) the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at Facility shall be automatically and permanently reduced by the total amount of such time prepayment, and (B) any amount remaining after application as set forth in the Cash Collateralization of the remaining L/C Obligations in full preceding sentence (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral cash collateral shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first(including, for the avoidance of doubt, the payment on the Maturity Date with respect to the Term Facility) in direct inverse order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (iii) or (iv) of this Section 2.05(b) to be applied to prepay Loans exceeds $1,000,000. During such deferral period the Borrowers may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrowers shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrowers and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not be obligated to make such prepaymentpreviously been so applied.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Amendment Agreement (Gsi Group Inc)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay (or, in the case of the Incremental Term Facility, if any, offer to purchase at par), immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $75,000,000; provided, howeverthat, the foregoing requirement to offer to purchase Incremental Term Loans, if any, shall only apply in the case of a Disposition of any Significant Company or substantially all the assets of any Significant Company; provided, further, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided furtherprovided, however, 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 2.05(b)(i2.04(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Company or any of its the Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.15), the Borrowers Borrower shall prepay an aggregate principal amount of Term A Loans and Revolving Credit Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Restricted Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b)(i) shall be applied, first, ratably to the Term A Facility and any applicable Incremental Tranche and, in each caseto the extent such prepayment is to be made from the Net Cash Proceeds of a Disposition of a Significant Company, but subject to Section 2.04(b)(vii), the Incremental Term Facility, if any, and to the principal repayment of installments thereof first, in direct order of maturity for the first four installmentson a pro‑rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b2.04(b).
(viiv) Notwithstanding any Each prepayment of Loans pursuant to Section 2.04(b)(ii) shall be applied, first, to the other provisions Term A Facility and to the principal repayment of installments thereof on a pro‑rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (i), (iii) or (ivvi) of this Section 2.05(b2.04(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Swingline Loans and or L/C Borrowings and/or or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Swingline Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Swingline Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixvii) Notwithstanding any other provisions of this Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make, in accordance with Section 2.05(b2.04(b)(i), an offer to purchase at par the outstanding Incremental Term Loans, if any (a “Waivable Prepayment”), not less than three Business Days prior to the extent that date (the repatriation “Required Prepayment Date”) on which the Borrower is required to make such Waivable Prepayment, the Borrower shall notify the Administrative Agent of an the amount of such Net Cash Proceeds would result prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding outstanding Incremental Term Loans of the amount of such Incremental Term Lender’s Applicable Percentage of such Waivable Prepayment and such Incremental Term Lender’s option to refuse such amount. Each such Incremental Term Lender may exercise such option to refuse such amount by giving written notice to the Company and the Administrative Agent of its election to do so on or before 1:00 p.m., New York City time, on the first Business Day prior to the Required Prepayment Date (it being understood that any Incremental Term Lender which does not notify the Company and the Administrative Agent of its election to exercise such option on or before 1:00 p.m., New York City time, on 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). On the Required Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied (i) in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such Net Cash Proceeds so affected will not be required option, to prepay the Incremental Term Loans held by such Lenders (which prepayment shall be applied to repay the scheduled installments of principal of the Incremental Term Loans but only so long as specified by the repatriation Incremental Term Supplement), and (ii) in an amount equal to that portion of the Waivable Prepayment that otherwise would have been payable to those Incremental 56 Term Lenders that have elected to exercise such amount option, to prepay the Term A Loans and Revolving Credit Loans, which prepayment shall be further applied to the scheduled installments of Net Cash Proceeds would result principal of the Term A Loans and Revolving Credit Loans in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisaccordance with Section 2.04(b)(iv).
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Mandatory. (i) If the Administrative Agent notifies the Borrowers at any Loan Party time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within two (2) Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Borrowers shall Cash Collateralize the L/C Obligations in an aggregate amount at least equal to the amount by which the Total Outstandings exceed the Aggregate Commitments; provided, however, that, subject to the provisions of Section 2.16(a), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(i) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.
(ii) If the Company or any of its Domestic Subsidiaries Disposes of any property pursuant to (including any Equity Interest in any Person) in accordance with and permitted by Section 7.05(l7.02(b), (d) or (f) which results in the realization by such Person of Net Cash ProceedsProceeds (including, for the Borrowers shall prepay an aggregate principal amount avoidance of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provideddoubt, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to realized from the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or Technology Disposition but excluding any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02Excluded Disposal Proceeds), the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(v) below equal to 100% of such Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(v) below)..
(iii) Upon the incurrence or issuance by the Company or any of its Subsidiaries of any unsecured Indebtedness and/or Indebtedness that is junior to the Indebtedness incurred hereunder, in each case, pursuant to a capital markets transaction or any substitutions thereof, in each case after the Amendment No. 3 Closing Date, the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(v) below equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be made and applied as set forth in clauses clause (v) and (viiib)(v) below).
(iv) Upon any Extraordinary Receipt received the issuance by or paid to or for the account of any Loan Party Company or any of its Domestic Subsidiaries, and not otherwise included Subsidiaries of any of its Capital Stock after the Amendment No. 3 Closing Date (other than any issuance of Capital Stock in clause (i) of this Section 2.05(bconnection with employee benefit arrangements), the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness as provided in clause (b)(v) below equal to 100% of all Net Cash Proceeds received by the Company or such Subsidiary (such prepayments to be made and applied as set forth in clause (b)(v) below).
(v) Any Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as the case may be, that are or may be required to be applied in prepayment of the Loans and other Indebtedness pursuant to clauses (b)(ii), (b)(iii) and (b)(iv) above and clause (b)(vi) below shall be deposited immediately upon receipt in a blocked account opened with the Collateral Agent (provided that no such requirement shall apply unless such Net Cash Proceeds and/or Net Insurance/Condemnation Proceeds, when aggregated with all other such Net Cash Proceeds and/or Net Insurance/Condemnation Proceeds that are or may be required to be applied in prepayment, exceed $250,000, in which case all such proceeds shall be deposited in a blocked account) and applied, within three (3) Business Days of receipt (or such later date with respect to the prepayment of the NPA Notes as set forth in the Note Purchase Agreements), in each case, to prepay and, as applicable, cash collateralize on a pro rata basis based on the Applicable Balances (a) Loans and Letters of Credit outstanding hereunder, (b) Indebtedness outstanding under the Existing 2015 Term Loan Credit Agreement, (c) Indebtedness and letters of credit outstanding under the Existing Revolving Credit Agreement, and (d) certain outstanding amounts owing under the NPA Notes, it being agreed and understood that (x) any portion of such proceeds offered to, but declined by, the holders of the NPA Notes (after giving effect to all offers of such proceeds to the other holders of the NPA Notes) shall be used to prepay and, as applicable, cash collateralize Loans and Letters of Credit outstanding under this Agreement, Indebtedness outstanding under the Existing 2015 Term Loan Credit Agreement and Indebtedness and letters of credit outstanding under the Existing Revolving Credit Agreement on a pro rata basis based on the Applicable Balances thereof and (y) any portion of such proceeds allocated to Lenders under this Agreement or to lenders under the Existing Revolving Credit Agreement which exceeds the Applicable Outstandings under this Agreement or the Applicable Outstandings under and as defined in the Existing Revolving Credit Agreement, as applicable and as of the Relevant Completion Date, shall be used to prepay Indebtedness outstanding under the other Transaction Facilities on a pro rata basis based on the Applicable Balances thereof. The portion of any such Net Cash Proceeds allocated to a mandatory offer of prepayment to the holders of the NPA Notes and held in such blocked account with the Collateral Agent pending any such prepayment of the NPA Notes is referred to herein as the “Prepayment Proceeds (NPA Notes) Cash”.
(vi) If the Company or any of its Subsidiaries receives any Net Insurance/Condemnation Proceeds (other than Excluded Insurance/Condemnation Proceeds), the Borrowers shall prepay an aggregate principal amount of Loans and other Indebtedness equal to 100% of such Net Insurance/Condemnation Proceeds immediately upon receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be made and applied as set forth in clauses clause (vb)(v) and (viii) belowabove); providedprovided that, howeverif, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date any such prepayment is required to be made, the Company notifies the Administrative Agent of receipt its intention to reinvest all or any portion of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property Net Insurance/Condemnation Proceeds in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business (other than cash or Cash Equivalents) of the Loan Parties Company or any of its Subsidiaries up to a maximum of $25,000,000 in respect of each individual event or claim giving rise to Net Insurance/Condemnation Proceeds (y) enter into a binding definitive agreement for such replacementNet Insurance/Condemnation Proceeds or portion thereof, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment“Eligible Reinvestment Proceeds”), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), then so long as (a) no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have has occurred and be continuing, if, on any date on which is continuing and (b) such Eligible Reinvestment Proceeds are held in a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), blocked account opened with the aggregate amount of Net Cash Proceeds received in any calendar year and required by Collateral Agent until such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000time as they are reinvested, the Borrowers shall not be obligated required to make a mandatory prepayment under this clause (b)(vi) in respect of such prepaymentEligible Reinvestment Proceeds to the extent such Eligible Reinvestment Proceeds are so reinvested within 180 days following receipt thereof, or if the Company or any of its Subsidiaries has committed to so reinvest such Eligible Reinvestment Proceeds during such 180-day period and such Eligible Reinvestment Proceeds are so reinvested within 90 days after the expiration of such 180-day period; provided further that, if any Eligible Reinvestment Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrowers shall promptly prepay the outstanding principal amount of the Loans and other Indebtedness with the Eligible Reinvestment Proceeds not so reinvested as set forth in clause (b)(v) above (without regard to the immediately preceding proviso). The Collateral Agent shall promptly release any such Eligible Reinvestment Proceeds on deposit in such blocked account upon request by the Company for the purpose of making such reinvestments as contemplated herein; provided that any such request by the Company is accompanied by a certificate, signed by a Responsible Officer, describing, in reasonable detail, the proposed use of such Eligible Reinvestment Proceeds.
(vii) If Any proceeds, Net Cash Proceeds or Net Insurance/Condemnation Proceeds, as the case may be, available for any reason prepayment and/or as Cash Collateral under this Agreement pursuant to clause (b)(v) above shall first be applied in prepayment of outstanding Loans hereunder and, to the Total Revolving Credit Outstandings at any time exceed extent the Revolving Credit Facility at amount of such timeproceeds, in either Net Cash Proceeds or Net Insurance/Condemnation Proceeds exceeds the total outstanding principal amount of such caseLoans, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and use such remaining cash to collateralize any outstanding L/C Borrowings and/or Obligations as provided in Section 2.16. Any such Cash Collateralize Collateral shall be provided to the L/C Obligations (other than Issuers on a pro rata basis by reference to the uncollateralized L/C Borrowings) in an aggregate amount equal to Obligations held by each such excessL/C Issuer.
(viii) Prepayments Upon consummation of the Revolving Credit Facility made pursuant to this Section 2.05(b)Hydra Transaction, first(A) the unpaid principal amount of all outstanding Loans, all interest and other amounts owing or payable under the Loan Documents and all other Obligations (other than contingent indemnification obligations for which no claim has been made) shall automatically become due and payable, and shall be applied ratably immediately repaid in full in cash, (B) the commitment of each Lender to make Loans and any obligation of the L/C Borrowings and the Swing Line Loans, second, Issuers to make L/C Credit Extensions shall be applied ratably to automatically terminated, and (C) the outstanding Revolving Credit Loans, and, third, Company shall be used to immediately Cash Collateralize the remaining outstanding L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant to Section 7.05(lor (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Company shall prepay prepay, immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Proceeds; provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Company (as notified by the Lead Borrower Company to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.04(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Company or any of its Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.12), the Borrowers Company shall prepay an aggregate principal amount of Loans equal to 100% of 45 all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Restricted Subsidiary.
(iviii) Upon any Extraordinary Receipt received the incurrence or issuance by or paid to or for the account Holdings of any Loan Party Indebtedness (other than any Indebtedness expressly permitted to be incurred or any of its Domestic Subsidiariesissued pursuant to Section 7.12), Holdings shall deliver to the Company, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers Company shall prepay an aggregate principal amount of Loans equal to 100to, 50% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv)Holdings.
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) shall be applied, first, ratably to the Term A Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installmentson a pro-rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b2.04(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Company shall immediately prepay Revolving Credit Loans, the Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iiiii) or (iviii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amountsfull, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Company for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (CSC Holdings Inc)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay (or, in the case of the Incremental Term Facility, if any, offer to purchase at par), immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $75,000,000; provided, howeverthat, the foregoing requirement to offer to purchase Incremental Term Loans, if any, shall only apply in the case of a Disposition of any Significant Company or substantially all the assets of any Significant Company; provided, further, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided furtherprovided, however, 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 2.05(b)(i2.04(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c), (d), (e) or (f)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 360 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.02 ), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivii) below).
(iviii) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party the Borrower or any of its Domestic Subsidiaries, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (viv) and (viiivii) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may apply within 365 360 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property Real Property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivii) of this Section 2.05(b).
(viv) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment[Reserved].
(viivi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C ObligationsObligations (with no corresponding reduction of the Commitments); and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iiiii) or (iviii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If At any time in which any Incremental Term Facility Loan remains outstanding, if any Loan Party or any of its Domestic Subsidiaries (other than Agway Subsidiaries, Inactive Subsidiaries or Excluded Subsidiaries (other than Sxxxxxxxx)) Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), (b), (c), (d), (e) or (h)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viii) and (viiiv) below); provided, however, thatthat (1) the first $50,000,000 of such Net Cash Proceeds received in any fiscal year (the “Exempt Proceeds”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(i)(A), and (2) with respect to any Net Cash Proceeds received in respect of a Disposition described in this Section 2.05(b)(i)(A) in excess of the Exempt Proceeds, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days 12 months after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that (x) any Net Cash Proceeds not subject to such definitive agreement or so reinvested within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.022.05(b)(i)(A), and (y) if a Default has occurred and is continuing at any time that the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Borrower or a Subsidiary Guarantor receives or is holding any Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiarieswhich have not yet been reinvested, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(i)(A).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) Beginning with the fiscal year ending on December 31, 2019, within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a) (the “Excess Cash Flow Application Date”), the Borrower shall prepay an aggregate principal amount of Loans equal to the excess (if any) of (A) the ECF Percentage of Excess Cash Flow for the fiscal year covered by such financial statements over (B) to the extent not financed using the proceeds of long-term Indebtedness, (x) the aggregate principal amount of Term Loans prepaid pursuant to Section 2.05(a) (such prepayments to be applied as set forth in clause (iv) below) plus (y) the aggregate principal amount of voluntary prepayments under the ABL Credit Agreement (to the extent commitments under the ABL Credit Agreement are permanently reduced by the amount of such prepayments at the time of such prepayment).
(ii) If any Loan Party (1) the Borrower or any of its Domestic Restricted Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(b), (c), (d), (e), and (f) or any Disposition of ABL Priority Collateral) or (2) any Casualty Event (other than in respect of ABL Priority Collateral) occurs, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of promptly upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided. Notwithstanding the foregoing, however, that, at the election Borrower may deliver within 45 days of the Borrowers (as notified by the Lead Borrower date of receipt of such Net Cash Proceeds a certificate to the Administrative Agent on or prior to the date setting forth that portion of such Disposition)Net Cash Proceeds that the Lead Borrower and/or its Restricted Subsidiaries, and as the case may be, intends to, so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days (or within 180 days following the end of such 365 day period if any portion of such proceeds are not so used within such 365 day period but are contractually committed within such 365 day period to be used) after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.02 (other than Refinancing Term Loans)), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, Loans in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)maturity.
(viv) Notwithstanding any of the other provisions of clause (i), (iii) or (ivii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,00010,000,000, the Borrowers Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i) or (ii) of this Section 2.05(b) to be applied to prepay Loans exceeds $10,000,000. Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first sentence of this clause (v)) but which have not be obligated to make such prepaymentpreviously been so applied.
(viivi) If for The Borrower shall notify the Administrative Agent in writing of any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line mandatory prepayment of Term Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal required to such excess.
(viii) Prepayments of the Revolving Credit Facility be made pursuant to this Section 2.05(b) 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 such prepayment. The Administrative Agent will promptly notify each Term Lender of the contents of any such prepayment notice and of such Term Lender’s ratable portion of such prepayment (based on such Lender’s pro rata share of each relevant Class of the Term Loans). Any Term Lender (a “Declining Term Lender”) may elect, firstby delivering written notice to the Administrative Agent and the Borrower no later than 5:00 p.m. one (1) Business Day after the date of such Term Lender’s receipt of notice from the Administrative Agent regarding such prepayment, that the full amount of any mandatory prepayment otherwise required to be made with respect to the Term Loans held by such Term Lender pursuant to Section 2.05(b) not be made (the aggregate amount of such prepayments declined by the Declining Term Lenders, the “Declined Prepayment Amount”). If a Term Lender fails to deliver notice setting forth such rejection of a prepayment to the Administrative Agent within the time frame specified above or such 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 prepayment of Term Loans. In the event that the Declined Prepayment Amount is greater than $0, such Declined Prepayment Amount shall be applied ratably retained by the Borrower. For the avoidance of doubt, the Borrower may, at its option, apply any amounts retained in accordance with the immediately preceding sentence to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, prepay loans in the case of prepayments of the Revolving Credit Facility required pursuant to clause accordance with Section 2.05(a).
(i), (iiivii) or (iv) Notwithstanding any other provision of this Section 2.05(b), ) the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b)contrary, to the extent that a Responsible Officer of the Borrower has reasonably determined in good faith that repatriation of an amount any of such or all the Net Cash Proceeds or Excess Cash Flow of a Foreign Subsidiary giving rise to a prepayment event pursuant to this Section 2.05(b) (i) would result in have a material adverse tax consequences consequence or (ii) would not be permissible under any applicable Law or would conflict with the fiduciary duties of such Foreign Subsidiary’s directors, or would result in, or be reasonably be expected to Holdings and its Subsidiaries on result in, a consolidated basismaterial risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay prepay Loans at the Loans but only so long as times provided in this Section 2.05(b); provided that the Borrower hereby agrees, and will cause any applicable Restricted Subsidiary, to promptly take all commercially reasonable actions required by Law (including applicable local law) to permit such repatriation of without such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisconsequences.
Appears in 1 contract
Samples: Credit Agreement (Callaway Golf Co)
Mandatory. (i) If any Loan Party Holdings or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(lor assets (other than any Disposition of any property or assets permitted by Sections 7.05(a) through (i), (l) or (m)) which in the aggregate results in the realization by Holdings or such Person Subsidiary of Net Cash ProceedsProceeds (determined as of the date of consummation of such Disposition, whether or not such Net Cash Proceeds are then received by Holdings or such Subsidiary, but with the Borrowers amount of any such Net Cash Proceeds attributable to any time period after the consummation of such Disposition to be determined by an estimate made in good faith by a Responsible Officer), in excess of the lesser of $25,000,000 and 10% of Consolidated Net Tangible Assets (as defined in the 2015 Subordinated Notes Indenture), determined as of the last day of the most recent fiscal quarter for which a consolidated balance sheet of Holdings and its Subsidiaries has been prepared as of the date of consummation of such Disposition, in any fiscal year, then the Borrower shall prepay prepay, within 360 days of the date of such Disposition, an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of receipt thereof by received therefrom on or prior to such Person date (such prepayments to be applied as set forth in clauses (viii) and (viiiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i) (other than Dispositions pursuant to Section 7.05(k)), at the election option of the Borrowers (Borrower, and as notified by the Lead Borrower an alternative to the Administrative Agent on or prior to the date of such Dispositionprepayment requirement set forth in this Section 2.05(b)(i), and so long as no Default shall have occurred and be continuing, such Loan Party Holdings or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in fixed or capital assets to be used or useful in the business of the Loan Parties Borrower and its Subsidiaries so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated Proceeds are used or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated committed to be so used within 180 days 12 months after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing Disposition giving rise to the Administrative Agent; and provided further, however, 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 obligations under this Section 2.05(b)(i); provided, further, that with respect to any Disposition permitted by Section 7.05(k), the amount required to be prepaid pursuant to this Section 2.05(b)(i) shall be 50% of the first $200,000,000 of the Receivables Facility Size thereof and 100% of the Receivables Facility Size thereof in excess of $200,000,000.
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days on the date of receipt thereof by Holdings or such Subsidiary if received prior to 11:00 a.m. on a Business Day and otherwise on the next Business Day; provided that this provision shall apply to Indebtedness of Holdings only if such Indebtedness is of the type described in clause (such prepayments to be applied as set forth a) of the definition of “Indebtedness” and exceeds $25,000,000 in clauses (v) and (viii) below)the aggregate outstanding at any time.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term A Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installmentson a pro rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiiiv) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C BorrowingsUnreimbursed Obligations, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixv) Notwithstanding If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other provisions of this Section 2.05(b), to than the extent that the repatriation of L/C Borrowings) in an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an aggregate amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisexcess.
Appears in 1 contract
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to that is permitted by Section 7.05(l7.05(e) which or that is not permitted by Section 7.05, which, in either case, results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay prepay, or cause to be prepaid, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of Proceeds, immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiivi) below); provided, however, that, at .
(ii) Upon the election sale or issuance by any Loan Party or any of the Borrowers its Subsidiaries of any of its Equity Interests (as notified by the Lead Borrower other than any sales or issuances of Equity Interests to the Administrative Agent on or prior to the date of such Dispositionanother Loan Party), and so long as no Default the Borrower shall have occurred and prepay, or cause to be continuingprepaid, an aggregate principal amount of Loans equal to 35% of all Net Cash Proceeds received therefrom, immediately upon receipt thereof by such Loan Party or such Subsidiary may reinvest all or any portion of (such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing prepayments to the Administrative Agent; and provided further, however, 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 2.05(b)(iclause (vi) below).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay prepay, or cause to be prepaid, an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of therefrom, immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiivi) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i), (ii), (iii) or (v) of this Section 2.05(b2.03(b), the Borrowers Borrower shall prepay prepay, or cause to be prepaid, an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom, immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiivi) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof)that, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awardsExtraordinary Receipt), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply may, within 365 90 days after the receipt of such Net Cash Proceeds, use such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which the Extraordinary Receipts were received or reinvest such cash proceeds were received or to the acquisition of in other capital assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition Borrower and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementits Subsidiaries; and provided, further, however, that any cash proceeds Net Cash Proceeds not so applied shall be immediately applied after the expiration of such 90-day period to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.03(b)(iv);
(v) Upon release to any Loan Party or any Subsidiary thereof of any cash or cash equivalents that previously secured any Cash Secured Letters of Credit, the Borrower shall prepay, or cause to be prepaid, an aggregate principal amount of Loans equal to 100% of such cash or cash equivalents, immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below).
(vvi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.03(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, applied to the principal repayment installments thereof first, of the Facility in direct inverse order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)maturity.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Advanced Emissions Solutions, Inc.)
Mandatory. (a) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(1) and the related Compliance Certificate has been delivered pursuant to Section 6.02(1), commencing with the delivery of financial statements for the fiscal year ended December 31, 2019, the Borrower shall, subject to clauses (g) and (h) of this Section 2.05(2), prepay, or cause to be prepaid, an aggregate principal amount of Term Loans (the “ECF Payment Amount”) equal to 50% (such percentage as it may be reduced as described below, the “ECF Percentage”) of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (without duplication) the sum of:
(A) all voluntary prepayments, repurchases or redemptions (including loan buybacks (including pursuant to Section 2.05(1)(e)) permitted under the applicable Indebtedness in an amount equal to the amount actually paid in respect of the principal amount of such purchased Indebtedness and only to the extent that such Indebtedness has been cancelled) and prepayments in connection with lender replacement provisions (including pursuant to Section 3.07)) of:
(i) Term Loans that are secured, in whole or in part, by the Collateral on a pari passu basis with the Closing DateReplacement Term Loans,
(ii) Credit Agreement Refinancing Indebtedness, Permitted Incremental Equivalent Debt, and any other Indebtedness in the form of notes or term loans, in each case to the extent secured by the Collateral, in whole or in part, on a pari passu basis with the First Lien Obligations under this Agreement (but without regard to the control of remedies),
(iii) Revolving Loans (in each case of this clause (iii), to the extent accompanied by a permanent reduction in the corresponding Revolving Commitments or other revolving commitments),
(iv) revolving loans under any revolving facility (other than under the Revolving Facility or any Incremental Revolving Facility) that is secured, in whole or in part, by the Collateral on a pari passu basis with the First Lien Obligations under this Agreement (but without regard to the control of remedies) (in each case of this clause (iv) (and with respect to any revolving facility under clause (ii) above), to the extent accompanied by a permanent reduction in the corresponding revolving commitments),
(B) the amount of Restricted Payments made in respect of Holdings’s or any Parent Company’s common Equity Interests (for the avoidance of doubt, other than Restricted Payments pursuant to Section 7.05(b)(14)(b)) and paid in cash during such period, except to the extent such Restricted Payments were financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness),
(C) without duplication of amounts deducted pursuant to clause (k) of the definition of Excess Cash Flow in prior fiscal years, the amount of cash consideration paid by Holdings and its Restricted Subsidiaries (on a consolidated basis) in connection with investments made during such period (including Permitted Acquisitions, investments constituting Permitted Investments and investments made pursuant to Section 7.05),
(D) without duplication of amounts deducted pursuant to clause (k) of the definition of Excess Cash Flow in prior fiscal years, the amount of Capital Expenditures, Capitalized Software Expenditures or acquisitions of intellectual property accrued or made in cash during such period, and
(E) the aggregate Contract Consideration required to be paid in cash by Holdings or any of its Restricted Subsidiaries and any Planned Expenditures by Holdings or any of its Restricted Subsidiaries relating to Capital Expenditures, in each case, to be consummated or made, as applicable, during the period of four consecutive fiscal quarters of Holdings following the end of such period (except to the extent financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)); provided that, to the extent that the aggregate amount (excluding in each case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness) of Holdings, the Borrower or any Restricted Subsidiary) of such Capital Expenditures during such following period of four consecutive fiscal quarters is less than the applicable Contract Consideration and Planned Expenditures (excluding in each case any amount financed with the proceeds of long-term Indebtedness (other than revolving Indebtedness)) deducted under this clause (E), the amount of such shortfall shall be added to the calculation of the applicable ECF Payment Amount at the end of such period of four consecutive fiscal quarters, in the case of each of the immediately preceding clauses (A), (B), (C) and (D), made during such fiscal year (without duplication of any payments or prepayments, repurchases or redemptions in such fiscal year that reduced the amount of Excess Cash Flow required to be repaid pursuant to this Section 2.05(2)(a) for any prior fiscal year) or, at the option of the Borrower, after the fiscal year-end but prior to the date a prepayment pursuant to this Section 2.05(2)(a) is required to be made in respect of such fiscal year and in each case to the extent such prepayments are not funded with the proceeds of long-term Indebtedness (other than any Indebtedness under a Revolving Facility or any other revolving credit facilities); provided that (w) a prepayment of Term Loans pursuant to this 2.05(2)(a) in respect of any fiscal year shall only be required in the amount (if any) by which the ECF Payment Amount for such fiscal year exceeds $35.0 million, (x) the ECF Percentage shall be 25% if the First Lien Net Leverage Ratio as of the end of the fiscal year covered by such financial statements was less than or equal to 2.50 to 1.00 and greater than 2.00 to 1.00 (with the ECF Percentage being calculated after giving effect to such prepayment at a rate of 50%) and (y) the ECF Percentage shall be 0% if the First Lien Net Leverage Ratio as of the end of the fiscal year covered by such financial statements was less than or equal to 2.00 to 1.00 (with the ECF Percentage being calculated after giving effect to such prepayment at a rate of 25%); provided further that:
(A) if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to Discharge Other Applicable Indebtedness with Other Applicable ECF pursuant to the terms of the documentation governing such Indebtedness, then the Borrower (or any Restricted Subsidiary) may apply such portion of Excess Cash Flow otherwise required to repay the Term Loans pursuant to this Section 2.05(2)(a) on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness requiring such Discharge at such time) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(2)(a) shall be reduced accordingly (provided that the portion of such Excess Cash Flow allocated to the Other Applicable Indebtedness shall not exceed the amount of such Other Applicable ECF required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such portion of Excess Cash Flow shall be allocated to the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(a)); and
(B) to the extent the lenders or holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid with such portion of Excess Cash Flow, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(a).
(i) If any Loan Party (x) Holdings, the Borrower or any of its Domestic Subsidiaries Disposes of Restricted Subsidiary makes an Asset Sale or (y) any property pursuant to Section 7.05(l) Casualty Event occurs, which results in the realization or receipt by Holdings or such Person Restricted Subsidiary of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments prepay, or cause to be applied as set forth in clauses (v) and (viii) below); providedprepaid, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date which is ten (10) Business Days after the date of the realization or receipt by Holdings or such Restricted Subsidiary of such DispositionNet Proceeds, subject to clause (ii) of this Section 2.05(2)(b) and clauses (2)(g) and (h) of this Section 2.05, an aggregate principal amount of Term Loans equal to 100% (such percentage as it may be reduced as described below, the “Net Proceeds Percentage”) of all Net Proceeds realized or received; provided that no prepayment shall be required pursuant to this Section 2.05(2)(b)(i) with respect to such portion of such Net Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest (or entered into a binding commitment or a binding letter of intent to reinvest) in accordance with Section 2.05(2)(b)(ii); provided further that (x) the Net Proceeds Percentage shall be 50% if the First Lien Net Leverage Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 2.50 to 1.00 and greater than 2.25 to 1.00 (with the Net Proceeds Percentage being calculated after giving effect to such prepayment at a rate of 100%), (y) the Net Proceeds Percentage shall be 25% if the First Lien Net Leverage Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 2.25 to 1.00 and so long as no Default greater than 2.00 to 1.00 (with the Net Proceeds Percentage being calculated after giving effect to such prepayment at a rate of 50%) and (z) the Net Proceeds Percentage shall be 0% if the First Lien Net Leverage Ratio for the Test Period most recently ended prior to the date of such required prepayment is less than or equal to 2.00 to 1.00 (with the Net Proceeds Percentage being calculated after giving effect to such prepayment at a rate of 25%); provided further that
(A) if at the time that any such prepayment would be required, the Borrower (or any Restricted Subsidiary) is required to Discharge any Other Applicable Indebtedness with Other Applicable Net Proceeds pursuant to the terms of the documentation governing such Indebtedness, then the Borrower (or any Restricted Subsidiary) may apply such Net Proceeds otherwise required to repay the Term Loans pursuant to this Section 2.05(2)(b)(i) on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness requiring such Discharge at such time), to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have occurred otherwise been required pursuant to this Section 2.05(2)(b)(i) shall be reduced accordingly (provided that the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such Other Applicable Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof and the remaining amount, if any, of such portion of Net Proceeds shall be continuingallocated to the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(b)(i));
(B) to the extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid with such portion of such Net Proceeds, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such Loan Party rejection) be applied to prepay the Term Loans to the extent required in accordance with the terms of this Section 2.05(2)(b)(i).
(ii) With respect to any Net Proceeds realized or such Subsidiary received with respect to any Asset Sale or any Casualty Event, Holdings, the Borrower or any Restricted Subsidiary, at its option, may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the for their business of the Loan Parties so long as within 365 days after the (x) eighteen (18) months following receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated Proceeds or (y) if Holdings, the Borrower or any Restricted Subsidiary enters into a legally binding commitment or a legally binding letter of intent to reinvest such Net Proceeds within eighteen (18) months following receipt thereof, within the later of (A) eighteen (18) months following receipt thereof and (B) one hundred eighty (180) days of the date of such legally binding commitment or legally binding letter of intent; provided that the Borrower may elect to deem expenditures that otherwise would be permissible reinvestments that occur prior to receipt of such Net Proceeds to have been reinvested in accordance with the provisions of this Section 2.05(2)(b)(ii) (it being understood that such deemed expenditures shall have been made no earlier than the earliest of notice to the Administrative Agent, execution of a definitive agreement for such purchase shall have been entered into Asset Sale and consummation of such purchase shall have been consummated within 180 days Asset Sale or Casualty Event); provided further that if any Net Proceeds are no longer intended to be or cannot be so reinvested at any time after such binding definitive agreementreinvestment election, in each of cases and subject to clauses (xg) and (yh) as certified by of this Section 2.05(2), an amount equal to any such Net Proceeds shall be applied within five (5) Business Days after the Lead Borrower in writing reasonably determines that such Net Proceeds are no longer intended to the Administrative Agent; and provided further, however, that any Net Cash Proceeds be or cannot subject to such definitive agreement or be so reinvested shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(i)2.05.
(iic) [Intentionally OmittedReserved].
(iiid) Upon If Holdings, the incurrence or issuance by Holdings Borrower or any of its Subsidiaries of Restricted Subsidiary incurs or issues any Indebtedness (other than Indebtedness i) not expressly permitted to be incurred or issued pursuant to Section 7.027.02 or (ii) that constitutes Other Loans or Credit Agreement Refinancing Indebtedness, in each case, incurred or issued to refinance any Class (or Classes) of Term Loans resulting in Net Proceeds (as opposed to such Credit Agreement Refinancing Indebtedness or Other Loans arising out of an exchange of existing Term Loans for such Credit Agreement Refinancing Indebtedness or Other Loans), the Borrowers Borrower shall prepay prepay, or cause to be prepaid, an aggregate principal amount of Term Loans of any Class or Classes (in each case, as directed by the Borrower) equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days which is five (5) Business Days after the receipt by Holdings or such Restricted Subsidiary of such cash proceeds either Net Proceeds.
(xi) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans Except as otherwise set forth in this Section 2.05(b)(iv).
(v) Each any Refinancing Amendment, Extension Amendment or Incremental Amendment, each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(brequired by Sections 2.05(2)(a), (b) and (d)(i) shall be appliedallocated to any Class of Term Loans outstanding as directed by the Borrower, firstshall be applied pro rata to Term Lenders within such Class of Term Loans, based upon the outstanding principal amounts owing to the each such Term Facility Lender under such Class of Term Loans and any applicable Incremental Tranche and, in each case, shall be applied to the reduce such remaining scheduled installments of principal repayment installments thereof first, within such Class of Term Loans in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligationsmaturity; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.provided that
Appears in 1 contract
Mandatory. (i) If If, at any Loan Party or time, the Total Outstandings at such time exceed the Maximum Revolving Credit, then, (A) to the extent that the Administrative Agent is exercising its rights to sweep cash under any of Control Account, within one Business Day and (B) to the extent that the Administrative Agent is not exercising its Domestic Subsidiaries Disposes of rights to sweep cash under any property pursuant to Section 7.05(lControl Account, within three (3) which results Business Days, in the realization by such Person of Net Cash Proceedseither case, the Borrowers shall prepay the outstanding Loans and/or the Cash Collateralize the outstanding L/C Obligations (including by depositing funds in the L/C Cash Collateral Account pursuant to Section 2.04(h)(i)) in an aggregate principal amount sufficient to reduce the amount of Total Outstandings as of such date of payment to an amount less than or equal to the Maximum Revolving Credit; provided, however, that, subject to the provisions of Section 2.04(h)(ii), the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in full of the Loans the Total Outstandings exceed the Maximum Revolving Credit above at such time.
(ii) At any time following the occurrence and during the continuation of a Liquidity Period, within one Business Day following the receipt of any Net Cash Proceeds in respect of any Disposition of ABL Priority Collateral or any Net Insurance/Condemnation Proceeds constituting ABL Priority Collateral, the Borrowers shall apply an amount equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments or Net Insurance/Condemnation Proceeds, as applicable, received with respect thereto to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at prepay the election outstanding principal amount of the Loans and/or Cash Collateralize the outstanding L/C Obligations, and the Borrowers (as notified by the Lead Borrower shall deliver an updated Borrowing Base Certificate to the Administrative Agent on or prior to the date of any such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party Disposition or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Insurance/Condemnation Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon Prepayments of the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued Facilities made pursuant to this Section 7.022.06(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line LoansSwingline Loans or Protective Advances, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, Loans and third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in .
(iv) In the case of prepayments of the Revolving Credit Facility Facilities required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.06(b), the amount remaining, if any, after the prepayment in full of all L/C BorrowingsBorrowings and Loans, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its their business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as in the L/C Cash Collateral Account shall be applied (without any further action by or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Contura Energy, Inc.)
Mandatory. (i) If any Loan Party The Borrower shall:
(A) within three Business Days of receipt by the Borrower or any of its Domestic Restricted Subsidiaries Disposes of any Net Cash Proceeds from asset sales or other dispositions of property pursuant by the Borrower or any Restricted Subsidiary to Section 7.05(lthe extent resulting in Net Cash Proceeds in excess of $10,000,000 for any disposition or series of related dispositions, as set forth in clause (a) which results in of the realization by such Person definition of “Net Cash Proceeds”, the Borrowers shall prepay an aggregate principal amount of Loans the Term Advances (and, upon prepayment in full of the Term Advances, the Revolving Advances) in an amount equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion amount of such Net Cash Proceeds in assets used or useful in the business excess of the Loan Parties so long as $10,000,000;
(B) within 365 days after the three Business Days following receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that or any of its Restricted Subsidiaries of any Net Cash Proceeds not subject to such definitive agreement from the incurrence or so reinvested shall be immediately applied issuance of any Debt by the Borrower or any Restricted Subsidiary to the prepayment extent resulting in Net Cash Proceeds in excess of the Loans $10,000,000 for any incurrence or issuance or series of related incurrences or issuances, as set forth in this Section 2.05(b)(i).
clause (iib) [Intentionally Omitted].
(iii) Upon of the incurrence or issuance by Holdings or any definition of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02)“Net Cash Proceeds”, the Borrowers shall prepay an aggregate principal amount of Loans the Term Advances (and, upon prepayment in full of the Term Advances, the Revolving Advances) in an amount equal to 100% of all the amount of such Net Cash Proceeds received therefrom in excess of $10,000,000; and
(C) within three (3) Business Days following receipt by the Borrower or any of receipt thereof its Restricted Subsidiaries of any Net Cash Proceeds from the sale or issuance of any Equity Interests by Holdings the Borrower or such Subsidiary (such prepayments to be applied any Restricted Subsidiary, as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (ic) of this Section 2.05(b)the definition of “Net Cash Proceeds”, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche andAdvances(and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the upon prepayment in full of all L/C Borrowingsthe Term Advances, Swing Line Loans and the Revolving Credit Loans outstanding at such time and the Cash Collateralization Advances) in an amount equal to 75% of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal Proceeds.
(ii) All prepayments under this subsection (b) shall be made together with accrued interest to the portion date of such Net Cash Proceeds so affected will prepayment on the principal amount prepaid, together with any amounts owing pursuant to Section 11.04(c).
(iii) Any prepayments of the Revolving Advances pursuant to this Section 4.01(b) shall not be required to be applied to repay accompanied by a corresponding mandatory permanent reduction of the Loans but only so long as Total Revolving Credit-Linked Deposit Amount or the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisRevolving Commitments.
Appears in 1 contract
Mandatory. (i) (A) If any Loan Party (x) Parent, the Borrower or any of its Domestic their respective Subsidiaries Disposes of any property or assets (other than any Disposition (1) to a Loan Party or (2) by a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party) pursuant to Section 7.05(l7.05(j), (l), (o) which results or (p), or (y) any Casualty Event occurs, and the transactions or series of related transactions described in this clause (A) result in the realization receipt by such Person Parent, the Borrower and the Subsidiaries of Net Cash ProceedsProceeds (any such transaction or series of related transactions being a “Relevant Transaction”), the Borrowers Borrower shall (1) give written notice to the Administrative Agent thereof promptly after the date of receipt of such Net Cash Proceeds and (2) except to the extent the Borrower elects in such notice to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 2.05(b)(i)(B), the Borrower shall, subject to Section 2.05(b)(vi) hereof, prepay an aggregate principal amount of Term Loans in an amount equal to 100% of such the Net Cash Proceeds received from such Relevant Transaction in excess of such annual limit within three fifteen (315) Business Days of receipt thereof by Parent, the Borrower or such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Subsidiary; provided, however, that, at provided that the election Borrower may use a portion of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt from such Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a pari passu or senior basis to the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for with the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% proceeds of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche andRelevant Transaction, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) case in an aggregate amount equal not to such excess.
exceed (viii1) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b)pari passu Indebtedness, the amount remaining, if any, after product of (x) the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result and (y) a fraction, the numerator of which is the outstanding principal amount of such other pari passu Indebtedness and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness, and (2) in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisthe case of Senior Indebtedness, an the amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisProceeds.
Appears in 1 contract
Samples: Credit Agreement (Keyw Holding Corp)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay prepay, immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $150,000,000; provided, howeverthat, thatwith respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower Company in writing to the Administrative Agent); and provided furtherprovided, however, 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 2.05(b)(i2.04(b)(i).; and
(ii) [Intentionally Omitted].
(iiii) Upon the incurrence or issuance by Holdings the Company or any of its the Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.15), the Borrowers Borrower shall prepay an aggregate principal amount of Term A Loans and Revolving Credit Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth Restricted Subsidiary; provided, in the case of each of clauses (vi) and (viiiii) below).
(iv) Upon above, if at the time that any Extraordinary Receipt received by or paid to or for such prepayment would be required, the account of any Loan Party Company or any of its Domestic SubsidiariesRestricted Subsidiaries shall be required to, and not otherwise included in clause or to offer to, repurchase or redeem or repay or prepay any Indebtedness (iincluding any Incremental Facilities or Incremental Equivalent Debt) secured on a pari passu basis with or senior to the Obligations pursuant to the terms of this Section 2.05(bthe documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition, Event of Loss or incurrence or issuance of Indebtedness (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers shall prepay an Company (or any Restricted Subsidiary) may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term A Loans equal (but not the Revolving Loans) and Other Applicable Indebtedness at such time); provided, that if no Term A Loans subject to 100% such mandatory prepayment requirement are outstanding or will be outstanding after the application of such prepayment, then the Company may apply all such Net Cash Proceeds after the repayment of such Term A Loans to repay the Other Applicable Indebtedness; provided, further, that the portion of such Net Cash Proceeds within three (3) Business Days allocated to the Other Applicable Indebtedness shall not exceed the amount of receipt thereof by such Loan Party or such Subsidiary (such prepayments Net Cash Proceeds required to be applied as set forth 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 A Loans and Revolving Loans (in clauses (v) and (viii) belowaccordance with the terms hereof); provided, howeverfurther, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on extent the holders of Other Applicable Indebtedness decline to have such Indebtedness repurchased or prior to repaid with such Net Cash Proceeds, the declined amount of such Net Cash Proceeds shall promptly (and in any event within ten (10) Business Days after the date of receipt of such insurance proceeds or condemnation awards), rejection) be applied to prepay the Term A Loans and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after Revolving Loans in accordance with the receipt of such cash proceeds either terms hereof (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for extent such replacement, repair or acquisition and such replacement, repair or acquisition shall Net Cash Proceeds would otherwise have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not required to be so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ivif such Other Applicable Indebtedness was not then outstanding).
(vii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b)(i) shall be applied, first, ratably to the Term A Facility and any applicable Incremental Tranche and, in each case, (to the principal repayment of installments thereof firston a pro rata basis) and any Other Applicable Indebtedness, in direct order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b2.04(b).
(viiii) Notwithstanding Each prepayment of Loans pursuant to Section 2.04(b)(ii) shall be applied, first, ratably, to the Term A Facility (to the principal repayment of installments thereof on a pro rata basis) and any of Other Applicable Indebtedness and, second, to the other provisions of Revolving Credit Facility in the manner set forth in clause (i), (iii) or (ivvi) of this Section 2.05(b2.04(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Swingline Loans and or L/C Borrowings and/or or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiv) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Swingline Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Swingline Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the relevant L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixvi) Notwithstanding any other provisions of this Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make, in accordance with Section 2.05(b2.04(b)(i), an offer to purchase at par the outstanding Incremental Term Loans, if any (a “Waivable Prepayment”), not less than three Business Days prior to the extent that date (the repatriation “Required Prepayment Date”) on which the Borrower is required to make such Waivable Prepayment, the Borrower shall notify the Administrative Agent of an the amount of such Net Cash Proceeds would result prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding outstanding Incremental Term Loans of the amount of such Incremental Term Lender’s Applicable Percentage of such Waivable Prepayment and such Incremental Term Lender’s option to refuse such amount. Each such Incremental Term Lender may exercise such option to refuse such amount by giving written notice to the Company and the Administrative Agent of its election to do so on or before 1:00 p.m., New York City time, on the first Business Day prior to the Required Prepayment Date (it being understood that any Incremental Term Lender which does not notify the Company and the Administrative Agent of its election to exercise such option on or before 1:00 p.m., New York City time, on 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). On the Required Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied (i) in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such Net Cash Proceeds so affected will not be required option (the “Non-Waiving Lenders”), to prepay the Incremental Term Loans held by such Non-Waiving Lenders (which prepayment shall be applied to repay the scheduled installments of principal of the Incremental Term Loans but only so long as specified by the repatriation Incremental Term Supplement), and (ii) in an amount equal to that portion of such amount the Waivable Prepayment that otherwise would have been payable to Incremental Term Lenders that are not Non-Waiving Lenders, to prepay the Term A Loans and Revolving Credit Loans, which prepayment shall be further applied to the scheduled installments of Net Cash Proceeds would result principal of the Term A Loans and Revolving Credit Loans, as applicable, in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisaccordance with Section 2.04(b)(iv).
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first(including, for the avoidance of doubt, the payment on the Maturity Date with respect to the Term Facility) pro rata in direct order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (iii) or (iv) of this Section 2.05(b) to be applied to prepay Loans exceeds $1,000,000. During such deferral period the Borrowers may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrowers shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrowers and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not be obligated to make such prepaymentpreviously been so applied.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisthe Borrowers, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisthe Borrowers.
Appears in 1 contract
Samples: Credit Agreement (Novanta Inc)
Mandatory. (i) If The Borrower shall, on the third Business Day following the receipt by the Borrower after the Effective Date of (A) Net Cash Proceeds from any Loan Party Asset Sales in the case of sales of assets or Equity Interests of, or other Investments in, IPALCO or any of its Domestic Subsidiaries Disposes pursuant to clause (iv) of Section 5.18 or (B) Net Cash Proceeds from the incurrence of any property pursuant Bridge Debt, offer to Section 7.05(lprepay, on a pro rata basis, an aggregate principal amount of the Term Loans in an amount equal to the Banks’ Ratable Share of such Net Cash Proceeds and the Term Loan Banks shall have the option to accept or refuse such prepayment in accordance with the provisions set forth in Section 2.10(c). Upon the payment in full of the Term Loans, the Borrower shall apply such Net Cash Proceeds to ratably prepay the Revolving Credit Loans and the Green Revolving Credit Loans outstanding at such time (without any reduction of Revolving Credit Loan Commitments).
(i) which results in The Borrower shall, on the realization by such Person third Business Day following the date of receipt of Net Cash ProceedsProceeds from the issuance of Debt by any Subsidiary of the Borrower permitted pursuant to Section 5.07(b)(ii) (but only to the extent applicable pursuant to the proviso thereof) and Section 5.07(b)(vi) (but only to the extent the Debt was incurred by IPALCO, the Borrowers shall offer to prepay an aggregate principal amount of the Term Loans in an aggregate amount equal to 100the Banks’ Ratable Share of such Net Cash Proceeds (other than $200,000,000 of additional Debt of IPALCO incurred after the Effective Date). The Term Loan Banks shall have the option to accept or refuse any prepayment pursuant to this Section 2.10(b)(ii) in accordance with the provisions set forth in Section 2.10(c). So long as Net Cash Proceeds referred to in this Section 2.10(b)(ii) are received by the Borrower, the Borrower agrees to use all reasonable efforts to cause all such Net Cash Proceeds permitted to be distributed to be so distributed. Upon the payment in full of the Term Loans, the Borrower shall apply such Net Cash Proceeds to ratably prepay the Revolving Credit Loans and the Green Revolving Credit Loans outstanding at such time (without any reduction of Revolving Credit Loan Commitments). provided that with respect to Asset Sales described in clause (y) (and not in clause (x)) in the parenthetical appearing in the definition of Asset Sale (or any Bridge Debt in respect thereof), only 50% of such Net Cash Proceeds within three (3) Business Days of receipt thereof actually received by such Person (such prepayments the Borrower shall be subject to be applied as set forth in clauses (v) and (viii) belowthis Section 2.10(b); provided, howeverfurther, thatthat so long as no Event of Default shall then exist or would arise therefrom, at the election of the Borrowers such Net Cash Proceeds from an Asset Sale described in such clause (as notified by the Lead Borrower y) (and not in clause (x)) (or any Bridge Debt in respect thereof) shall not be required to be applied pursuant to this Section 2.10(b) to the Administrative extent that the Borrower shall have delivered a certificate of a Responsible Officer to the Agent on or prior to the offer commencement or prepayment date specified in this Section 2.10(b) stating that such Net Cash Proceeds are expected to be used to purchase replacement assets or repair such assets, or to purchase assets used or useful in the business of the Borrower and its Subsidiaries, or to acquire more than 50% of the Equity Interests of any person that owns such assets or engages in a business of the type that the Borrower and Subsidiaries are permitted to be engaged in and, in each case, otherwise in compliance with the terms of this Agreement, no later than 365 days following the date of such DispositionAsset Sale (or any Bridge Debt in respect thereof); provided that such time may be extended by an additional 90 days if, on or prior to the 365th day following the date of receipt of such Net Cash Proceeds, the Borrower delivers a certificate of a Responsible Officer to the Agent detailing the intended use of such Net Cash Proceeds and so long as no Default shall have occurred and certifying that the Net Cash Proceeds will be continuing, such Loan Party or such Subsidiary may reinvest used in accordance with this proviso; provided that if all or any portion of such Net Cash Proceeds in assets used is not so reinvested within such 365-day period (or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing longer period to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02extent extended), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, unused portion shall be applied ratably to on the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum last day of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use period as provided in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iiithis Section 2.10(b). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (ia) If any Loan Party The Company shall, upon receipt by the Parent or any the Company of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsProceeds from the incurrence, sale or issuance of the Borrowers shall prepay an aggregate principal Take-Out Securities, deposit or cause to be deposited the amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at with the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement Indenture Trustee for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 Securities in this accordance with Section 2.05(b)(i902(c).
(iib) The Company shall, upon receipt by the Parent or any Subsidiary of the Parent of the Net Cash Proceeds from (i) the sale, lease, transfer or other disposition of any assets of the Parent or any of its Subsidiaries (other than any sale, lease, transfer or other disposition of assets pursuant to clause (i), ( ) or ( ) of Section ____ [Intentionally Omittedasset sale covenant].
) or (iiiB) Upon the incurrence or issuance by Holdings the Parent or any of its Subsidiaries of any Indebtedness Debt (other than Indebtedness expressly the Take-Out Securities or other Debt permitted to be incurred or issued pursuant to Section 7.02clause ( ), the Borrowers shall prepay an aggregate principal amount ( ) or ( ) of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings Section ____ [Debt covenant]), in each case deposit or such Subsidiary (such prepayments cause to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for deposited the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, advances under the Borrowers shall not be obligated to make such prepaymentSenior Credit Agreement with the Indenture Trustee for prepayment of Securities in accordance with Section 902(c).
(viic) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such caseWithin 3 Business Days of receipt, the Borrowers Indenture Trustee shall immediately use such Net Cash Proceeds deposited with it pursuant to Section 902(a) and (b) to prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments Outstanding Securities at a price of 100% of the Revolving Credit Facility made pursuant to this Section 2.05(bprincipal amount thereof (including Additional Amounts), firstplus accrued and unpaid interest thereon, to the applicable Prepayment Date. Each such prepayment or redemption shall be applied ratably to the L/C Borrowings Securities, and to the Swing Line Loans, second, remaining installments thereof pro rata. Amounts deposited with the Indenture Trustee under this Section 902 may not be withdrawn except to effect such prepayment or redemption as provided herein.
(d) All prepayments and redemptions under this Section 902 shall be applied ratably made together with accrued interest to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum date of such prepayment amounts, cash collateralization amounts and remaining or redemption on the principal amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 prepaid or notice to or from the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicableredeemed.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Indenture (Warnaco Group Inc /De/)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Restricted Subsidiaries (A) Disposes of any property pursuant (other than any deemed Disposition referred to in Section 7.05(l7.08(c)) or (B) suffers an Event of Loss, in each case, which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay (or, in the case of the Term B Loan or Incremental Term Facility, if any, offer to purchase at par), immediately upon receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) Business Days of receipt thereof by such Person (such prepayments that have not been used to be applied as prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth in clauses (v) and (viii) below), exceeds $50,000,000; provided, howeverthat, the foregoing requirement to offer to purchase Term B Loans or Incremental Term Loans, if any, shall only apply in the case of a Disposition of any Operating Company or substantially all the assets of any Operating Company; provided, further, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date receipt of such DispositionNet Cash Proceeds), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided furtherprovided, however, 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 2.05(b)(i2.04(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.15), the Borrowers Borrower shall prepay an aggregate principal amount of Term A Loans and Revolving Credit Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below)Restricted Subsidiary.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viii) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b)(i) shall be applied, first, ratably to the Term A Facility and, to the extent such prepayment is to be made from the Net Cash Proceeds of a Disposition of an Operating Company, but subject to Section 2.04(b)(vii), the Term B Facility and any applicable Incremental Tranche andTerm Facility, in each caseif any, and to the principal repayment of installments thereof first, in direct order of maturity for the first four installmentson a pro-rata basis and, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) of this Section 2.05(b2.04(b).
(viiv) Notwithstanding any Each prepayment of Loans pursuant to Section 2.04(b)(ii) shall be applied, first, to the other provisions Term A Facility and to the principal repayment of installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (i), (iii) or (ivvi) of this Section 2.05(b2.04(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Swingline Loans and or L/C Borrowings and/or or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b2.04(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Swingline Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b2.04(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Swingline Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixvii) Notwithstanding any other provisions of this Anything contained herein to the contrary notwithstanding, in the event the Borrower is required to make, in accordance with Section 2.05(b2.04(b)(i), an offer to purchase at par the outstanding Term B Loans or Incremental Term Loans, if any (a “Waivable Prepayment”), not less than three Business Days prior to the extent that date (the repatriation “Required Prepayment Date”) on which the Borrower is required to make such Waivable Prepayment, the Borrower shall notify the Administrative Agent of an the amount of such Net Cash Proceeds would result prepayment, and the Administrative Agent will promptly thereafter notify each Lender holding outstanding Term B Loans of the amount of such Term B Lender’s Applicable Percentage of such Waivable Prepayment and such Term B Lender’s option to refuse such amount. Each such Term B Lender may exercise such option to refuse such amount by giving written notice to the Borrower and the Administrative Agent of its election to do so on or before 1:00 p.m., New York City time, on the first Business Day prior to the Required Prepayment Date (it being understood that any Term B Lender which does not notify the Borrower and the Administrative Agent of its election to exercise such option on or before 1:00 p.m., New York City time, on 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). On the Required Prepayment Date, the Borrower shall pay to the Administrative Agent the amount of the Waivable Prepayment, which amount shall be applied (i) in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the that portion of the Waivable Prepayment payable to those Lenders that have elected not to exercise such Net Cash Proceeds so affected will not be required option, to prepay the Term B Loans held by such Lenders (which prepayment shall be applied to repay the scheduled Installments of principal of the Term B Loans but only so long as in accordance with Section 2.06(b)), and (ii) in an amount equal to that portion of the repatriation Waivable Prepayment that otherwise would have been payable to those Term B Lenders that have elected to exercise such option, to prepay the Term A Loans and Revolving Credit Loans, which prepayment shall be further applied to the scheduled installments of such amount principal of Net Cash Proceeds would result the Term A Loans and Revolving Credit Loans in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisaccordance with Section 2.04(b)(iv).
Appears in 1 contract
Samples: Credit Agreement (AMC Networks Inc.)
Mandatory. (i) (A) If (1) any Loan Party Prepayment Asset Sale occurs or (2) any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) Casualty Event occurs, which in the aggregate results in the realization or receipt by such Person any Restricted Company of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments cause to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such DispositionNet Cash Proceeds an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans on a pro rata basis in an amount equal to the Asset Sale Percentage of all Net Cash Proceeds received (the “Applicable Asset Sale Proceeds”); provided that (x) no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, and so long as no Default on or prior to such date, the Borrower shall have occurred and be continuing, such Loan Party or such Subsidiary may given written notice to the Administrative Agent of its intention to reinvest all or any a portion of such Net Cash Proceeds in assets used or useful in the business accordance with Section 2.06(b)(i)(B) (which election may only be made if no Specified Event of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into Default has occurred and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (xis then continuing) and (y) as certified 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 Lead Borrower in writing Collateral ranking pari passu with the Lien securing the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to the Administrative Agent; and provided further, however, that any terms of the documentation governing such Indebtedness with the Net Cash Proceeds not subject of such Disposition or Casualty Event (such Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower, at its election, may apply the Applicable Asset Sale 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 definitive agreement or time) and the remaining Net Cash Proceeds so reinvested shall be immediately applied received to the prepayment of the Loans as set forth in this Section 2.05(b)(i).such Other Applicable 90
(ii) [Intentionally Omitted].
(iii) Upon the incurrence If any Restricted Company incurs or issuance by Holdings or any of its Subsidiaries of issues any Indebtedness (other than Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.027.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrowers Borrower shall prepay cause to be prepaid an aggregate principal amount of Initial Term Loans and 2022 Incremental Term B-2 Loans (on a pro rata basis) in an amount equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days which is five Business Days after the receipt of such cash proceeds either Net Cash Proceeds.
(xiii) Within ten Business Days after financial statements have been or are required to replace be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or repair is required to be delivered pursuant to Section 6.02(a) for the equipmentrelevant Excess Cash Flow Period, fixed assets the Borrower shall cause to be prepaid an aggregate principal amount of the Initial Term Loans and the 2022 Incremental Term B-2 Loans on a pro rata basis, and any other Term Loans then subject to ratable prepayment requirements in accordance with Section 2.06(b)(iv) in an amount equal to the Excess Cash Flow Percentage of Excess Cash Flow, if any, for the Excess Cash Flow Period covered by such financial statements minus the sum of (1) the amount of any voluntary prepayments of the Term Loans, Repatriation Bridge Loans and any other prepayments of Incremental Equivalent Debt and/or other Indebtedness secured by Liens on the Collateral on a pari passu or real property senior basis with the Liens on the Collateral securing the Initial Term Loans and the 2022 Incremental Term B-2 Loans during the Excess Cash Flow Period covered by such financial statements and after the end of such Excess Cash Flow Period and prior to the payment date (including in connection with debt buybacks made by the Borrower in an amount equal to the discounted amount actually paid in respect thereof pursuant to Section 2.06(d), Section 2.07 of which the Guaranty Agreement and/or otherwise, and/or the application of yank-a-bank provisions that result in a reduction of such cash proceeds were received or Loans) and (i) solely to the acquisition of assets used extent the Revolving Credit Commitments (or useful revolving commitments, as applicable) are reduced in connection therewith (and solely to the business extent of the Loan Parties amount of such reduction), the amount of any prepayments of the Revolving Credit 91
(iv) Except as otherwise provided in any Incremental Joinder, Refinancing Amendment or (yExtension Amendment, in each case with respect to the Class or Classes of Term Loans covered thereby, each prepayment of Term Loans pursuant to this Section 2.06(b) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied in a manner as directed by the Borrower among any Class or Classes of Term Loans, and without any such direction, ratably to each Class of the Term Loans (based on the amount of outstanding principal) and in direct order of maturities to the prepayment principal repayment installments of the Term Loans as set forth in this Section 2.05(b)(iv)that are due after the date of such prepayment; provided that, the Borrower may not direct any mandatory prepayments under one Class or Classes of Term Loans to a later maturing Class or Classes of Term Loans without at least a pro rata repayment of any related earlier maturing Class or Classes.
(v) Each The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Initial Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the and/or 2022 Incremental Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be B-2 Loans required to be made pursuant to clause clauses (i), (ii) and (iii) or (iv) of this Section 2.05(b), 2.06(b) at least (A) in the aggregate amount case of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay the prepayment of Term Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit which are Base Rate Loans, Swing Line Loans one Business Day and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowingsj) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of Term Loans which are Eurocurrency Rate Loans or Term SOFR Loans, three Business Days, in each case prior to the date of such prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment.
(vi) In the event that on any Revaluation Date (after giving effect to the determination of the Total Revolving Outstandings with respect to the applicable Revolving Credit Facility) the Total Revolving Outstandings with respect to such Revolving Credit Facility exceeds an amount equal to 105% of the total Revolving Credit Commitments under such Revolving Credit Facility, the Borrower shall, within two Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Credit Facility required pursuant to clause (i), (iii) Loans or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining and/or reduce L/C Obligations (in full (each case, taking the sum Dollar Equivalent of any amounts in an Alternate Currency), in an aggregate amount sufficient to reduce such Total Revolving Outstandings as of the date of such prepayment amounts, cash collateralization amounts and remaining payment to an amount being, collectively, not to exceed 100% of the “Reduction Amount”) may be retained by the Borrowers for use total Revolving Credit Commitment then in the ordinary course of its business, and the effect with respect to such Revolving Credit Facility by taking any of the following actions as it shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii92
(vii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable[Reserved].
(ixviii) Notwithstanding any other provisions of this Section 2.05(b2.06(b), to the extent that any prepayment otherwise required by the repatriation realization or receipt of an amount any or all of such the Net Cash Proceeds of any Disposition of property or assets by a Non-U.S. Subsidiary (or any of their Subsidiaries) (a “Foreign Asset Sale”), the Net Cash Proceeds of any Casualty Event realized or received by a Non-U.S. Subsidiary (or any of its Subsidiaries) (a “Foreign Recovery Event”), or Excess Cash Flow attributable to Non-U.S. Subsidiaries (or any of their Subsidiaries) (a “Foreign Cash Sweep”) would result in material and adverse tax Tax consequences to Holdings the Borrower or its direct or indirect owners or Subsidiaries as reasonably determined by the Borrower or is prohibited or delayed by any applicable Law (including, without limitation, capital maintenance, financial assistance, corporate benefit or other restrictions (including as to lack of distributable reserves) on up streaming of cash intragroup and the fiduciary and statutory duties of the management of the relevant members of the relevant Non-U.S. Subsidiary or any of its Subsidiaries giving rise to any risk of personal liability, including any civil or criminal liability) or other material agreements from being repatriated to or passed on a consolidated basisto or used for the benefit of the Borrower, an amount equal to the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay prepay the Initial Term Loans or the 2022 Incremental Term B-2 Loans at the times provided in Section 2.06(b) but may be retained by the applicable Non-U.S. Subsidiary or any of its Subsidiaries so long, but only so long long, as such material and adverse Tax consequences would so result or the applicable Law or material agreement will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower, as applicable (the Borrower hereby agreeing to use (or cause the applicable Non-U.S. Subsidiary or its applicable Subsidiary to use) all commercially reasonable efforts for one year to promptly overcome or eliminate any such restrictions on repatriation, passing on or other use for the benefit of the Borrower and/or use the other cash sources of the Borrower and the Restricted Subsidiaries to make the relevant prepayment) and once such repatriation of any of such amount of affected Net Cash Proceeds would or Excess Cash Flow is permitted under the applicable Law, such repatriation will be promptly effected and such repatriated Net Cash Proceeds or Excess Cash Flow will be applied promptly (and in any event not later than two Business Days after such repatriation) (net of additional Taxes payable or reserved against as a result thereof) to the prepayment of the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to Section 2.06(b). For the avoidance of doubt, notwithstanding any other provisions of Section 2.06(b) , any prepayment required as a result of a Foreign Asset Sale, Foreign Recovery Event or Foreign Cash Sweep (whether or not subject to the other terms of this Section 2.06(b)(viii)) shall be net of additional Taxes payable or reserved against as a result of such prepayment.
(ix) Notwithstanding the foregoing or any other provision in material adverse tax consequences this Agreement, each Term Lender shall have the right to Holdings and reject its Subsidiaries on applicable percentage of any repayment or prepayment of the Term Loans pursuant to Section 2.06(b) (each such Lender, a consolidated basis“Rejecting Lender”), in which case the amounts so rejected may be retained by the Borrower (the aggregate amount of such proceeds so rejected as of any date of determination, the “Declined Proceeds”).
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Mandatory. (i) Upon the occurrence of a Change of Control, the Borrower shall within five (5) Business Days prepay 100% of the Obligations.
(ii) (A) If any Loan Party the Borrower or any of its Domestic Restricted Subsidiaries Disposes of any property or assets (other than any Disposition (1) to a Loan Party or (2) by a Restricted Subsidiary that is not a Loan Party to another Restricted Subsidiary that is not a Loan Party) pursuant to Section 7.05(l7.05(o) which results and the transactions or series of related transactions described in this clause (A) result in the realization receipt by such Person the Borrower and its Restricted Subsidiaries of Net Cash ProceedsProceeds in excess of $5,000,000 in any fiscal year (and only the amount in excess of such threshold shall be required to be used to prepay the Loans under this clause (b)) (any such transaction or series of related transactions being a “Relevant Transaction”), the Borrowers Borrower shall prepay an aggregate principal amount (1) give written notice to the Administrative Agent thereof promptly after the date of Loans equal to 100% receipt of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii2) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower except to the Administrative Agent on or prior extent the Borrower elects in such notice to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any a portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 accordance with Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.022.05(b)(ii)(B), the Borrowers shall Borrower shall, subject to Section 2.05(b)(vii) hereof, prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all the Net Cash Proceeds received therefrom from such Relevant Transaction in excess of such annual limit within three (3) ten Business Days of receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for Restricted Subsidiary; provided that the account Borrower may use a portion of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt received from the Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a first lien “equal and ratable” basis with the Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any the proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, firstRelevant Transaction, to the Term Facility and any applicable Incremental Tranche andextent not deducted in the calculation of Net Cash Proceeds, in each case, in an amount not to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, product of (1) the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on (2) a consolidated basisfraction, an the numerator of which is the outstanding principal amount equal to the portion of such Net Cash Proceeds so affected will other Indebtedness and the denominator of which is the aggregate outstanding principal amount of Loans and such other Indebtedness (amounts not be required to be applied to repay prepayment, excluding amounts subject to reinvestment, the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis“Retained Asset Sale / Casualty Proceeds”).
Appears in 1 contract
Samples: Credit Agreement (Abacus Life, Inc.)
Mandatory. (i) If any Loan Party the Company or any of its Domestic Subsidiaries Disposes of any property pursuant to in accordance with and permitted by Section 7.05(l7.02(f) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiib)(iv) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) . Upon the incurrence or issuance by Holdings the Company or any of its Subsidiaries of any unsecured Indebtedness (other than and/or Indebtedness expressly permitted that is junior to be the Indebtedness incurred or issued hereunder, in each case pursuant to Section 7.02)a capital markets transaction or any substitutions thereof, after the Amendment No. 3 Closing Date, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings the Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiib)(iv) below).
(iv) . Upon any Extraordinary Receipt received the sale or issuance by or paid to or for the account of any Loan Party Company or any of its Domestic Subsidiaries, and not otherwise included Subsidiaries of any of its Capital Stock after the Amendment No. 3 Closing Date (other than any sale or issuance of Capital Stock in clause (i) of this Section 2.05(bconnection with employee benefit arrangements), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party the Company or such Subsidiary (such prepayments to be applied as set forth in clauses clause (v) and (viiib)(iv) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) . Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.03(b) shall be appliedapplied (x) in the case of an at-the-market (ATM) offering pursuant to clause (b)(iii) above, firston the last day of each March, to June, September and December and (y) in all other cases, promptly (but in any event within 30 days upon such receipt of proceeds), and on a pro rata basis based on outstanding balances under each of this Agreement, the Term Facility Existing 2013 Revolving Credit Agreement, the Existing 2015 Revolving Credit Agreement and any applicable Incremental Tranche andthe Note Purchase Agreements, in each case, as of the last day of the fiscal quarter immediately preceding such Disposition or incurrence of Indebtedness or issuance of Capital Stock, as applicable, to prepay (A) Loans hereunder, on the one hand, and (B) certain outstanding amounts owing under the NPA Notes, on the other hand, in each case, it being agreed and understood that any portion of such proceeds offered to, but declined by, the holders of the NPA Notes (after giving effect to all offers of such proceeds to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any other holders of the other provisions of clause (i), (iiiNPA Notes) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line prepay Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablehereunder.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If any Loan Party Within ten Business Days after receipt by the Borrower or any of its Domestic Subsidiaries Disposes Restricted Subsidiary of any property pursuant Net Available Proceeds from any Asset Sale or series of related Asset Sales permitted by Section 8.01(d), (m), (n) or (o), the Borrower shall either (1) prepay an aggregate principal amount of Loans or (2) commit to prepay, redeem, purchase, defease or otherwise satisfy other term Indebtedness of the Borrower to the extent permitted by Section 7.05(l8.05 (and thereafter consummate such prepayment, redemption, purchase, defeasance or satisfaction within an additional 45 days), or any combination of the foregoing in an aggregate amount equal to 100% of such Net Available Proceeds (with any prepayments of the Loans to be applied as set forth in clauses (iv) which results and (vi) below); provided, that at the election of the Borrower (as notified by the Borrower to the Administrative Agent within ten Business Days following the date of receipt of such Net Available Proceeds of such Asset Sale), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the realization business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of receipt of such Person Net Available Proceeds of such Asset Sale or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Cash ProceedsAvailable Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest the Net Available Proceeds from such Asset Sale as set forth above) shall be immediately applied to the prepayment of the Loans or other term Indebtedness as set forth in this Section 2.04(b)(i).
(ii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Debt Issuance or incurrence of Credit Agreement Refinancing Indebtedness, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Cash Available Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (viv) and (viiivi) below).
(iii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds of any Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Available Proceeds received therefrom (such prepayments to be applied as set forth in clauses (iv) and (vi) below); provided, however, that, with respect to any Net Available Proceeds realized with respect to any such Casualty Event, (A) at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to within 45 days following the date of receipt of such DispositionNet Available Proceeds of such Casualty Event), the Borrower and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary its Restricted Subsidiaries may reinvest all or any portion of such Net Cash Available Proceeds in the replacement or restoration of any properties or assets in respect of which such Net Available Proceeds were paid or in assets that are used or useful in the business of the Loan Parties so long as Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days after following the date of receipt of such Net Cash Proceeds, either (x) Available Proceeds of such purchase shall have been consummated Casualty Event or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding definitive agreement for commitment to use such purchase shall have been entered into and such purchase shall have been consummated Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent365-day period; and provided further, however, that any Net Cash Available Proceeds not subject to such definitive agreement legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest such Net Available Proceeds as set forth above) shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below2.04(b)(iii); providedand provided further, however, that with respect to any proceeds such replacement or restoration of insurance property or condemnation awards assets constituting Collateral, the Borrower shall take all actions specified in Section 6.09 in order that such property or asset shall constitute Collateral upon the acquisition or construction thereof and (or payments B) if the Borrower and its Restricted Subsidiaries are required to apply any such Net Available Proceeds under the applicable Master Lease to any other purpose, such Net Available Proceeds may be applied to such purpose in lieu thereof), at of making the election prepayment of the Borrowers (as notified Loans required by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awardsthis Section 2.04(b)(iii), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, provided however, that any cash proceeds Net Available Proceeds not so applied subject to any such requirements under the applicable Master Lease, or that are subsequently released from such use, shall be immediately applied to the prepayment of the Loans as otherwise set forth in this Section 2.05(b)(iv2.04(b)(iii).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b2.04(b) shall be appliedapplied first (a) ratably to each Class of Term Loans (or, firstin the case of New Term Loans, to Extended Term Loans and Other Term Loans, on a less than pro rata basis if elected in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) and (b) (x) for the Term Facility and any applicable Incremental Tranche and, in each caseA Loans, to the principal repayment installments thereof firston a pro rata basis, (y) for the Term B Loans, to the principal repayment installments thereof in direct forward order of maturity and (z) for any other Class of Term Loans, as set forth for such Class in the first four installmentsapplicable Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement and second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiivi) below; provided that, notwithstanding the foregoing, each prepayment pursuant to Section 2.04(b)(ii) above with the proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Refinanced Debt. Any prepayment of the Term B Facility after the Third Amendment Effective Date and on or prior to the six (6) month anniversary of the Third Amendment Effective Date pursuant to Section 2.04(b)(ii) in connection with a Repricing Event described in clause (i) of this the definition thereof shall be accompanied by the payment of the fee described in Section 2.05(b2.08(c).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (MGM Growth Properties Operating Partnership LP)
Mandatory. (i) Within five (5) Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(a), the U.S. Borrower shall prepay an aggregate principal amount of Term B Loans equal to the excess (if any) of (A) 75% of Excess Cash Flow (provided that such percentage shall be reduced to 50% based upon the U.S. Borrower achieving a Consolidated Leverage Ratio of less than 3.50 to 1.0 pursuant to a Compliance Certificate delivered pursuant to Section 6.02(a)) for the fiscal year covered by such financial statements minus (B) the aggregate amount of all prepayments of Revolving Credit Loans and Swing Line Loans during such fiscal year to the extent accompanying permanent optional reductions of the Revolving Credit Commitments and all optional prepayments of the Term B Loans during such fiscal year.
(ii) If any Loan Party or any of its Domestic Subsidiaries (x) Disposes of any property pursuant to Section 7.05(l) in a Disposition constituting an Asset Sale which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such (y) receives Net Cash Proceeds within three of casualty insurance or condemnation awards (3or from payments in lieu thereof) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion Extraordinary Receipts (excluding for purposes of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or this clause (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, that any Net Cash Proceeds not subject from “Recoveries” (as defined in the AWA Environmental Indemnity Agreement and the API Environmental Indemnity Agreement), which must be paid to such definitive agreement or so reinvested shall be immediately applied to AWA under the prepayment terms of the Loans as set forth in this Section 2.05(b)(i).
applicable Fox River Indemnity Arrangements) or (iiz) [Intentionally Omitted].
(iii) Upon the incurrence incurs or issuance by Holdings or any of its Subsidiaries of issues any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers U.S. Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Term B Loans equal to 100% of such Net Cash Proceeds within three (3) five Business Days of the receipt thereof by such Loan Party or such Subsidiary Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiii) below); provided, however, that that, with respect to any proceeds of insurance Net Cash Proceeds or condemnation awards Extraordinary Receipts otherwise required to be applied under preceding clauses (or payments x) and (y) above in lieu thereofthis Section 2.05(b)(ii), at the election of the Borrowers U.S. Borrower (as notified by the Lead U.S. Borrower to the Administrative Agent on or prior (of its intent to reinvest) within five Business Days of the date of receipt of such insurance proceeds or condemnation awardsDisposition), and so long as no Event of Default shall have occurred and be continuingcontinuing at the time of such election, such Loan Party or such Subsidiary may apply reinvest all or any portion of such Net Cash Proceeds or Extraordinary Receipts in operating assets so long as within 365 180 days after the receipt of such cash proceeds either (x) to replace Net Cash Proceeds or repair the equipmentExtraordinary Receipts, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition purchase shall have been completed within 180 days after such binding definitive agreementconsummated; and provided, provided further, however, that any cash proceeds Net Cash Proceeds or Extraordinary Receipts not so applied reinvested shall be immediately applied (on such 180th day or, if sooner, to the extent (I) the U.S. Borrower makes an earlier determination that such funds will not be so invested (II) an Event of Default has occurred and is continuing and the Required Lenders have requested immediate application) to the prepayment of the Term B Loans as set forth in this Section 2.05(b)(iv2.05(b)(ii).
(viii) Each prepayment of Term B Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied to the Term Facility and any applicable Incremental Tranche and, in each case, to the remaining principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to Term B Facility as directed by the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b)U.S. Borrower.
(viiv) Notwithstanding any of the other provisions of clause (i), (iii) or (ivii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (ivii) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Term B Loans on such date is less than or equal to $1,000,0002,000,000, the Borrowers U.S. Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (ii) of this Section 2.05(b) to be applied to prepay Term B Loans exceeds $2,000,000. During such deferral period the U.S. Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of an Event of Default during any such deferral period, the U.S. Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the U.S. Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (iv)) but which have not be obligated to make such prepaymentpreviously been so applied.
(viiv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers U.S. Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiivi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers U.S. Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ixvii) Notwithstanding If the Administrative Agent notifies the Borrowers at any other provisions of this Section 2.05(b), to the extent time that the repatriation Outstanding Amount of an amount of all Loans denominated in Alternative Currencies at such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, time exceeds an amount equal to 105% of the portion Alternative Currency Sublimit then in effect, then, within five (5) Business Days after receipt of such Net Cash Proceeds so affected will not be required notice, the Borrowers shall prepay Loans in an aggregate amount sufficient to be applied to repay the Loans but only so long reduce such Outstanding Amount as the repatriation of such date of payment to an amount not to exceed 100% of Net Cash Proceeds would result the Alternative Currency Sublimit then in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basiseffect.
Appears in 1 contract
Mandatory. (i) [Intentionally Deleted].
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l(other than any Disposition of any property permitted by Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x) or (s)), which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) on or prior to the date that is five Business Days after the date of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest (or commit to reinvest) all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 days (or, in the case of a commitment to reinvest, within 90 days after such 365 days) after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided provided, further, however, that any Net Cash Proceeds not subject to such definitive agreement commitment to reinvest or so reinvested shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.05(b)(ii). Notwithstanding the foregoing, at least 50% of the Net Cash Proceeds from a Disposition of property under Section 7.05(g) shall be applied to prepay Loans in accordance with this Section 2.05(b)(ii) without any reinvestment rights.
(iiiii) [Intentionally OmittedDeleted].
(iiiiv) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) on or before the date that is five Business Days of after receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vvii) and (viiix) below).
(ivv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (iii) or (iv) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) received therefrom on or before the date that is five Business Days of after receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days (or, in the case of any commitment to apply such proceeds, 90 days after such 365 days) after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately promptly applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(v).
(vvi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term A Facility and any ratably across the applicable Incremental Tranche scheduled installments set forth in clause (a) of Section 2.07 and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the each Revolving Credit Facility in the manner set forth in clause (viiiix) of this Section 2.05(b).
(vivii) Notwithstanding any of the other provisions of clause (iii), (iiiiv) or (ivv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (iii), (iiiiv) or (ivv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,0002,500,000, the Borrowers Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (ii), (iv) or (v) of this Section 2.05(b) to be applied to prepay Loans exceeds $10,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Borrower shall promptly prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (viii)) but which have not be obligated to make such prepaymentpreviously been so applied.
(viiviii) If for any reason the Total U.S. Revolving Credit Outstandings at any time exceed the U.S. Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately promptly prepay U.S. Revolving Credit Loans, U.S. Swing Line Loans and U.S. L/C Borrowings and/or Cash Collateralize the U.S. L/C Obligations (other than the U.S. L/C Borrowings) in an aggregate amount equal to such excess; provided, that the Borrower shall not be required to Cash Collateralize the U.S. L/C Obligations pursuant to this Section 2.05(b)(viii) unless after the prepayment in full of the U.S. Revolving Credit Loans and U.S. Swing Line Loans such Total U.S. Revolving Credit Outstandings exceeds the U.S. Revolving Credit Facility then in effect.
(viiiix) Prepayments of the Revolving Credit Facility Facilities made pursuant to this Section 2.05(b), first, shall be applied ratably to the U.S. L/C Borrowings and the U.S. Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining U.S. L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility Facilities required pursuant to clause (iii), (iiiiv) or (ivv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all U.S. L/C Borrowings, U.S. Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining U.S. L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). Upon the drawing of any U.S. 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 the Borrowers Borrower or any other Loan Party) to reimburse the U.S. L/C Issuer or the U.S. Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Credit Agreement (Green Mountain Coffee Roasters Inc)
Mandatory. (i) [Intentionally Omitted].
(ii) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below); providedprovided that, however, thatwith respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, providedfurther that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be applied immediately applied following such 180-day period to the prepayment of the Loans as set forth in this Section 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted].
(iii) Upon the sale or issuance by any Loan Party or any of its Subsidiaries of any of its Equity Interests (other than Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) and (ix) below).
(iv) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of immediately upon receipt thereof by Holdings such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below).
(ivv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (iii), (iii) or (iv) of this Section 2.05(b), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds within three (3) Business Days of received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below); provided, however, provided that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 180 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, providedfurther that any cash proceeds not so applied shall be applied immediately applied following such 180-day period to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(v).
(vvi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Loan Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct inverse order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiiix) of this Section 2.05(b).
(vivii) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment[Intentionally Omitted].
(viiviii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viiiix) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C ObligationsObligations to the extent so required at such time pursuant to Section 2.03(g); and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (ii), (iii), (iv) or (ivv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers Borrower for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If The Borrower shall, on the Business Day following the date of receipt of any Net Cash Proceeds by any Loan Party or any of its Domestic Subsidiaries Disposes with respect to any sale, lease, transfer or other disposition of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash ProceedsTerm Facility Collateral or any Extraordinary Receipt, the Borrowers shall prepay an aggregate principal amount of Loans the Advances equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below)Proceeds; provided, however, thatthat (A) in the case of Net Cash Proceeds that are Extraordinary Receipts in respect of any casualty or condemnation event related to the Term Facility Collateral (“Extraordinary Receipts Proceeds”), to the extent such Extraordinary Receipts Proceeds are used to repair, restore or replace the assets that are the subject of such event in substantially the same location within 180 days after the receipt of such Extraordinary Receipts Proceeds by a Loan Party or any of its Subsidiaries, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder; (B) with respect to any Net Cash Proceeds (that are not Extraordinary Receipts Proceeds) realized under a sale, transfer or other disposition, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date 37 Chemtura (Term Loan) Credit Agreement of such Dispositionsale, transfer or other disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase reinvestment shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agentconsummated; and provided provided, further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested by the conclusion of such reinvestment period shall on the following Business Day be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i); and (C) in the case of Extraordinary Receipts Proceeds on account of the claims subject to the Xxxxxxx Fire Settlement, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder to the extent that such Extraordinary Receipts Proceeds shall be used to pay or reimburse the Loan Parties and their Subsidiaries for funding the settlement fund described in the definition of “Xxxxxxx Fire Settlement” and/or for legal fees and expenses incurred in connection therewith.
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings any Loan Party or any of its Subsidiaries of any Indebtedness Debt (other than Indebtedness Debt expressly permitted to be incurred or issued pursuant to Section 7.025.02(b)), the Borrowers Borrower shall prepay an aggregate principal amount of Loans Advances equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of receipt thereof by Holdings or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of immediately upon receipt thereof by such Loan Party or such Subsidiary Subsidiary.
(such prepayments to be applied as set forth in clauses (viii) Within five Business Days after financial statements and (viii) below); provided, however, that with respect to any proceeds the related certificate of insurance or condemnation awards (or payments in lieu thereof), at the election a Responsible Officer of the Borrowers Borrower have been delivered pursuant to Section 5.03(c) for the Fiscal Year ended on December 31, 2012 and for each Fiscal Year thereafter, the Borrower shall (as notified by the Lead Borrower subject to the Administrative Agent on or prior to the date of receipt ECF Prepayment Conditions being satisfied in respect of such insurance proceeds or condemnation awards)prepayment) prepay an aggregate principal amount of Advances equal to (A) the Applicable ECF Percentage of Excess Cash Flow for the Fiscal Year covered by such financial statements, minus (B) the aggregate principal amount of voluntary principal prepayments of the Advances and advances under the Revolving Facility (so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after prepayments of advances under the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business Revolving Facility are accompanied by a corresponding permanent commitment reduction of the Loan Parties or (yRevolving Facility) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility and any applicable Incremental Tranche and, in each case, to the principal repayment installments thereof first, in direct order of maturity for the first four installments, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iiiSection 2.05(a) hereof or (iv) of this Section 2.05(b), in accordance with the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments terms of the Revolving Facility Credit Facility made pursuant to this Section 2.05(b)Agreement, first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in as the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablebe.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Samples: Senior Secured Term Facility Credit Agreement (Chemtura CORP)
Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.05(a), or (b)) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three five (35) Business Days of upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vvi) and (viiiix) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), such Net Cash Proceeds will be deposited in an account of a Loan Party with the Administrative Agent and, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, 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 2.05(b)(i2.05(b)(ii).
(ii) [Intentionally Omitted]Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than the issuance of common stock upon the exercise of stock options held by employees and directors of the Borrower), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) and (ix) below).
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (vi) and (ix) below).
(iv) Upon any Extraordinary Receipt above an aggregate amount of $1,500,000 during any fiscal year, received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (ii), (iii) or (iv) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three five (35) Business Days of upon receipt thereof by Holdings the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (vvi) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause (i) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viiiix) below); provided, however, that with respect to any proceeds of insurance or insurance, condemnation awards (or payments in lieu thereof)) or indemnity payments, at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds proceeds, condemnation awards or condemnation awardsindemnity payments), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may apply within 365 180 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreementreceived; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv2.05(b)(v).
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, ratably to each of the Term Facility and any applicable Incremental Tranche and, in each case, the Amortizing Revolver Borrowings and to the principal repayment installments thereof first, in direct inverse order of maturity for the first four installmentsand, second, pro rata to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viiiix) of this Section 2.05(b).
(vi) Notwithstanding any If as of the other provisions last day of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), fiscal quarter the aggregate outstanding principal amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize excluding the L/C Obligations aggregate outstanding principal amount of the Amortizing Revolver Borrowings, exceeds the Borrower’s Working Capital, the Borrower will within five (5) Business Days repay the Revolving Credit Notes, without penalty or premium (other than the L/C Borrowings) amounts due under Section 2.4 or Section 2.5, if applicable), in an aggregate amount equal necessary to such excess.
(viii) Prepayments cause the outstanding principal amount of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to excluding the aggregate outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments principal amount of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Amortizing Revolver Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and not to exceed the Cash Collateralization Borrower’s Working Capital as of the remaining L/C Obligations in full (the sum last day of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicablefiscal quarter.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis.
Appears in 1 contract
Mandatory. (i) If any Loan Party or any of its Domestic Subsidiaries Disposes of any property pursuant to Section 7.05(l) which results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Person (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that, at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in assets used or useful in the business of the Loan Parties so long as within 365 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated or (y) a binding definitive agreement for such purchase shall have been entered into and such purchase shall have been consummated within 180 days after such binding definitive agreement, in each of cases (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent; and provided further, however, 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 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence or issuance by Holdings the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.027.03 (except Credit Agreement Refinancing Indebtedness)), the Borrowers Borrower shall prepay (or Cash Collateralize, as applicable) an aggregate principal amount of Loans Pro Rata Obligations equal to 100% of the gross cash proceeds received by the Borrower or any of its Restricted Subsidiaries from any such Indebtedness less all Net Cash Proceeds received therefrom reasonable and customary out-of-pocket legal, underwriting and other fees, costs and expenses incurred or reasonably anticipated to be incurred within three (3) 90 days thereof in connection therewith, within one Business Days of Day following receipt thereof by Holdings the Borrower or such Restricted Subsidiary (such prepayments (or Cash Collateralization) to be applied as set forth in clauses (viii) and (viiiv) below).
(ivii) Upon any Extraordinary Receipt received by [reserved];
(iii) Subject to the next sentence, each prepayment (or paid to or for the account of any Loan Party or any of its Domestic SubsidiariesCash Collateralization, and not otherwise included in clause (ias applicable) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(v) Each prepayment of Loans Pro Rata Obligations pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, to the Term Facility Loans held by all Term Lenders in accordance with their Applicable Percentages (allocated pro rata as among the Term Loans and any applicable Incremental Tranche and, to each Term Lender on a pro rata basis in each case, to accordance with the principal repayment installments thereof first, amount of the applicable Term Loans held thereby and to scheduled amortization payments in direct order of maturity for the first four installmentsmaturity), second, pro rata to any excess after the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourthapplication of such proceeds in accordance with clause first above, to the Revolving Credit Facility in the manner set forth in clause (viiiv) of this Section 2.05(b) and third, any excess after the application of such proceeds in accordance with clauses first and second above may be retained by the Borrower. Except with respect to Term Loans incurred in connection with any Refinancing Amendment or any Joinder Agreement (which, in each case, may be prepaid on a less than pro rata basis if expressly provided for in such Refinancing Amendment or Joinder Agreement), each prepayment pursuant to this Section 2.05(b) shall be applied ratably to each Class of Loans then outstanding entitled to payment pursuant to the prior sentence (provided that any prepayment of Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt). Any prepayment of a Loan pursuant to this Section 2.05(b) shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility Commitments at such timetime (including, in either such casefor the avoidance of doubt, as a result of the termination of any Class of Commitments on the Maturity Date with respect thereto), the Borrowers Borrower shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) (in an aggregate amount equal to 105% of the face amount thereof) in an aggregate amount sufficient to reduce the Total Revolving Credit Outstandings to the aggregate Revolving Credit Commitments. If for any reason the Outstanding Amount of L/C Obligations at any time exceed the Letter of Credit Sublimit at such excesstime, the Borrower shall immediately prepay L/C Borrowings and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce the Outstanding Amount of L/C Obligations to the Letter of Credit Sublimit. If for any reason the Outstanding Amount of Swing Line Loans at any time exceeds the Swing Line Sublimit at such time, the Borrower shall immediately prepay Swing Line Loans in an aggregate amount sufficient to reduce the Outstanding Amount of Swing Line Loans to the Swing Line Sublimit.
(viiiv) Prepayments of the Revolving Credit Facility Facilities made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit LoansLoans held by all Revolving Credit Lenders in accordance with their Applicable Revolving Credit Percentages, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable. Prepayments of the Revolving Credit Facilities made pursuant to this Section 2.05(b) shall be applied ratably to the outstanding Revolving Credit Loans. Amounts to be applied pursuant to this Section 2.05(b) to the mandatory prepayment of Term Loans and Revolving Credit Loans shall be applied, as applicable, first to reduce outstanding Base Rate Loans and any amounts remaining after such application shall be applied as directed by the Borrower to prepay Eurodollar Rate Loans, RFR Loans or CDOR Rate Loans.
(ixvi) Notwithstanding In the event that there are any other Term Loans outstanding, each Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to any mandatory prepayment provisions of this Section 2.05(brelating to asset sale proceeds, excess cash flow, insurance proceeds or condemnation proceeds set forth in any Joinder Agreement pursuant to which any Incremental Term Loan Commitments are established or any Incremental Term Loans are made), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the extent that “Declined Proceeds”). Any Term Lender declining such prepayment shall give written notice thereof to the repatriation Administrative Agent by 11:00 a.m. no later than one (1) Business Day after the date of such notice from the Administrative Agent. If a Lender fails to deliver a notice of election declining receipt of its Applicable Percentage of such mandatory prepayment to the Administrative Agent within the time frame specified above, any such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basis, an amount equal to the portion mandatory prepayment of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated basisTerm Loans.
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Mandatory. (i) If any Loan Party the Borrower or any of its Domestic Subsidiaries Disposes of any property pursuant to (other than any Disposition of any property permitted by Section 7.05(l7.04(a), (b), (c), (d), (e), (f), (h), (i) and (j) which results in the realization by such Person of Net Cash Proceeds, the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within three (3) Business Days of after receipt thereof by such Person (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrowers Borrower (as notified by the Lead Borrower to the Administrative Agent on within 90 days after or prior to the date of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets used or useful in the business of the Loan Parties so long as within 365 180 days after the receipt of such Net Cash Proceeds, either (x) such purchase shall have been consummated consummated, or (y) a binding definitive agreement for the Borrowers or such Subsidiary shall have committed to such purchase shall have been entered into in writing (and such the resulting purchase shall have been is consummated within 180 270 days after receipt of such binding definitive agreement, in each of cases Net Cash Proceeds) (x) and (y) as certified by the Lead Borrower in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not subject to such definitive written agreement or so reinvested shall be immediately applied to the prepayment of the Loans within 30 days of receipt thereof (or termination of such written agreement without consummation of purchase) as set forth in this Section 2.05(b)(i).
(ii) [Intentionally Omitted].
(iii) Upon the incurrence sale or issuance by Holdings or the Borrower of any of its Subsidiaries of any Indebtedness Equity Interests (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02Excluded Equity Issuances), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within three (3) Business Days of after receipt thereof by Holdings or such Subsidiary the Borrower (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below).
(iviii) Upon any Extraordinary Receipt received the incurrence or issuance by or paid to or for the account Borrower of any Loan Party or any of its Domestic Subsidiaries, and not otherwise included in clause Indebtedness (i) of this Section 2.05(bother than Excluded Debt Issuances), the Borrowers Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such all Net Cash Proceeds received therefrom within three (3) Business Days of after receipt thereof by such Loan Party or such Subsidiary the Borrower (such prepayments to be applied as set forth in clauses clause (v) and (viiiiv) below); provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Borrowers (as notified by the Lead Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 365 days after the receipt of such cash proceeds either (x) to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or to the acquisition of assets used or useful in the business of the Loan Parties or (y) enter into a binding definitive agreement for such replacement, repair or acquisition and such replacement, repair or acquisition shall have been completed within 180 days after such binding definitive agreement; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(iv).
(viv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, applied to the Term Facility and any applicable Incremental Tranche and, Loans of the Lenders in each case, to the principal repayment installments thereof first, in direct order accordance with their respective Applicable Percentages. Each mandatory prepayment of maturity for the first four installments, second, pro rata Loans shall be applied to the remaining installments (excluding the Maturity Date installment), third, to the Maturity Date installment and fourth, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.05(b).
(vi) Notwithstanding any of the other provisions of clause (i), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds received in any calendar year and required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrowers shall not be obligated to make such prepayment.
(vii) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, in either such case, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(viii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i), (iii) or (iv) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrowers for use in the ordinary course of its business, and the Revolving Credit Facility shall be automatically and permanently reduced by the Reduction Amount as set forth in Section 2.06(b)(ii) and Section 2.06(b)(iii). 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 the Borrowers or any other Scheduled Term Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(ix) Notwithstanding any other provisions of this Section 2.05(b), to the extent that the repatriation of an amount of such Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries Installments on a consolidated basis, an amount equal to the portion of such Net Cash Proceeds so affected will not be required to be applied to repay the Loans but only so long as the repatriation of such amount of Net Cash Proceeds would result in material adverse tax consequences to Holdings and its Subsidiaries on a consolidated pro rata basis.
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Samples: Credit Agreement (DPL Inc)
