Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B). (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06. (B) [Reserved]. (C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness. (ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds. (iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)
Mandatory. (i) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower relevant Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance), ); provided that at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, however, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$200,000,000 and 3.0% of Total Assets.
(ii) 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 was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)4.09 of Xxxxx XX, the Borrower Borrowers shall 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 on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such Net Cash Proceedsnet cash proceeds.
(iiiv) Within ten Business Days after financial statements have been or are If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C 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 relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 6.01(a2.05(b)(vii), to any Class or Classes of Term Loans, (B) 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 related Compliance Certificate has been Appropriate Lenders in accordance with their respective Pro Rata Share (or is other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, 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 of Term Loans required to be delivered made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 6.02(a)3.10, commencing with such Borrower may rescind (or delay the first full Fiscal Year ending 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, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 Closing Date, date of such Xxxxxx’s receipt of notice from the Borrower Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall cause specify the Subject principal amount of the mandatory repayment of Term Loans to be prepaid in an aggregate 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the “ECF Prepayment Amount”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 a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to 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 member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or 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 the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued 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) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower relevant Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance), ); provided that at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or recission) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, however, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$200,000,000 and 3.0% of Total Assets.
(ii) 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 was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the Delayed Amendment Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)4.09 of Annex II, the Borrower Borrowers shall 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 on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C 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 relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans, (B) 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 Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans without at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash Proceedsso 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to 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 member of the Restricted Group.
(iiiix) Within ten Upon becoming aware of a Change of Control:
(A) the Company or 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 after financial statements have been or are required Days’ notice to be delivered pursuant to Section 6.01(a) the Company, cancel each Facility, and the related Compliance Certificate has been or is required to Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Extension Amendment (Liberty Latin America Ltd.), Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Mandatory. (i) In the event and on such occasion that any Net Cash Proceeds are received by or on behalf of any Loan Party or any Subsidiary of a Loan Party in respect of any Reduction Event, the Borrower shall prepay Loans no later than the fifth Business Day following the occurrence of such Reduction Event (or in the case of a Reduction Event described in clause (a) of the definition of the term “Reduction Event”, on or before the fifth Business Day of the month following the month in which such sale occurs) by an amount equal to (A) If if such Reduction Event is an event described in clause (1a), (b), (c) or (e) of the definition of the term “Reduction Event”, 100% of the Net Cash Proceeds received with respect to such Reduction Event and (B) if such Reduction Event is an event described in clause (d) of the definition of the term “Reduction Event”, 50% of the Net Cash Proceeds received with respect to such Reduction Event (with such prepayments to be applied as set forth in Section 2.04(b)(iii) and Section 2.04(b)(iv) below), provided that any Restricted Company consummates a Prepayment Net Cash Proceeds from an Asset Sale or (2that is a Reduction Event shall not be applied to prepay Loans, in accordance with this Section 2.04(b)(i) any Casualty Event occurs, which in until the aggregate results in the realization or receipt by any Restricted Company amount of Net Cash Proceeds not yet applied in excess of the greater of accordance with this Section 2.04(b)(i) exceeds $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year1,000,000, the Borrower shall cause to be prepaid on or prior to the date at which is ten Business Days after the date of the realization or receipt of time all such Net Cash Proceeds shall be so applied. Notwithstanding the foregoing to the contrary:
(A) (1) if Net Cash Proceeds from an Asset Sale relating to Restaurant Businesses (including any Refranchising Asset Sale), when combined with all other such events occurring in any fiscal year of Parent and its Subsidiaries, results in aggregate principal Net Cash Proceeds of not more than $20,000,000 for such fiscal year, to the extent that the Borrower applies the Net Cash Proceeds from such event (or a portion thereof) within the Reinvestment Period to acquire Reinvestment Assets, then no prepayment of Loans shall be required pursuant to Section 2.04(b)(i) in respect of such amount except to the extent of Initial Term any such Net Cash Proceeds therefrom that have not been so applied by the end of such Reinvestment Period, at which time a prepayment of Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) shall be required in an amount equal to Required Net Proceed Percentage of all such Net Cash Proceeds received that have not been so applied (with such prepayment to be applied as set forth in excess Section 2.04(b)(iii) and Section 2.04(b)(iv) below); provided that Parent shall deliver to the Administrative Agent a certificate of a Responsible Officer promptly (and in any event no later than the fifth Business Day of the De Minimis month following the month in which such Net Cash Proceeds Threshold were received) following receipt of any Net Cash Proceeds of an Asset Sale relating to Restaurant Businesses (collectivelyincluding any Refranchising Asset Sale) for which a prepayment of Loans, the “Subject Proceeds”); provided, that no such prepayment shall may be required pursuant to this Section 2.06(b)(i)(A2.04(b)(i) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or setting forth a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option reasonably detailed calculation of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt amount of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)and
Appears in 2 contracts
Samples: Credit Agreement (Dennys Corp), Credit Agreement (Dennys Corp)
Mandatory. (i) If any Dispositions or Events of Loss with respect to any Property that includes any Pre-Petition BMO Primary Collateral, Pre-Petition CoBank Primary Collateral or Collateral (in an amount in excess of $1,000,000 in the aggregate) occur prior to the Termination Date and outside the ordinary course of business (no such Disposition to occur without Bankruptcy Court approval and with the Lenders reserving all rights, if any, to object to any such Disposition), 100% of the Net Proceeds thereof in excess of $1,000,000 (or any greater amount that is a whole multiple of $250,000) in the aggregate (the “Prepayment Amount”) shall be applied as follows:
(A) If First, to the costs, fees and expenses of the DIP Agent and the Lenders (1including without limitation the reasonable fees and expenses of their counsel and other professionals, including those previously employed or retained by the DIP Agent and the Lenders);
(B) Second, to interest and fees then due and then to the prepayment of all outstanding Loans and unreimbursed Reimbursement Obligations hereunder until all such Loans and Reimbursement Obligations shall be fully paid (but without any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which reduction in the aggregate results DIP Commitments resulting from such prepayments);
(C) Third, to be held by the DIP Agent in the realization or receipt by any Restricted Company Cash Collateral Account (including to prefund outstanding Letters of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) Credit in an amount equal to Required Net Proceed Percentage 105% of the amount of all Net such Letters of Credit) until released or applied pursuant to Section 4.4 hereof (but without any reduction in the DIP Commitments resulting from such prepayments); and
(D) Fourth, as the Financing Order shall provide if then in effect and otherwise as shall be determined by the Bankruptcy Court. Any such proceeds of sale designated to pay such taxes and costs of sale which are not required to be disbursed at the closing of such sale shall be held in escrow by the DIP Agent and shall be subject to the Lien of the DIP Agent, the Lenders, the Pre-Petition BMO Agent, the Pre-Petition BMO Lenders, the Pre-Petition CoBank Agent and the Pre-Petition CoBank Lenders until applied to pay such taxes and costs of sale and the amount of all obligations secured by Permitted Liens that are senior to the DIP Agent’s in the Collateral and the Replacement Liens.
(ii) Prior to the Termination Date, all Available Unrestricted Cash Proceeds received (including without limitation all Available Unrestricted Cash consisting of proceeds of the inventory and proceeds of the accounts receivable of the Borrower and the Guarantors and all Cash Collateral generated in the ordinary course of the Borrower’s and the Guarantors’ businesses) determined as of 12:00 noon, Chicago time, on any Business Day (other than amounts subject to Section 1.8(b)(i) hereof) in excess of $15,000,000 shall be deposited in the Collection Accounts referred to in Section 4.3 hereof and applied daily as follows:
(A) First, to the costs, fees and expenses of the DIP Agent and the Lenders (including without limitation the reasonable fees and expenses of their counsel and other professionals, including those previously employed or retained by the DIP Agent and the Lenders) that are then due and payable;
(B) Second, to interest and fees then due and payable and then to the prepayment of all outstanding Loans and unreimbursed Reimbursement Obligations hereunder until all such Loans and Reimbursement Obligations shall be fully paid (but without any reduction in the DIP Commitments resulting from such prepayments); and
(C) Third, to be held by the DIP Agent in the Cash Collateral Account (including to prefund outstanding Letters of Credit in an amount equal to 105% of the amount of all such Letters of Credit) until released or applied pursuant to Section 4.4 hereof.
(iii) The Borrower shall, on each date the DIP Commitments are reduced pursuant to Section 1.11 hereof, prepay the DIP Loans, Swing Loans, and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of DIP Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the DIP Commitments have been so reduced.
(iv) If at any time the sum of the unpaid principal balance of the DIP Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option lesser of the Borrower, DIP Commitments then in effect and so long the Borrowing Base as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of most recent Borrowing Base Certificate, the Subject Loans Borrower shall immediately and the Other Applicable Indebtedness (without notice or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed demand pay over the amount of the Subject Proceeds that is required excess to the DIP Agent for the account of the Lenders as and for a mandatory prepayment on such Post-Petition Obligations, with each such prepayment first to be allocated applied to the Other Applicable Indebtedness pursuant DIP Loans and Swing Loans until paid in full with any remaining balance to be held by the terms thereof, DIP Agent in the Cash Collateral Account as security for the Post-Petition Obligations owing with respect to outstanding Letters of Credit.
(and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the v) Each prepayment of the Subject Loans that would have otherwise been required pursuant to under this Section 2.06(b)(i1.8(b) shall be reduced accordingly and (2) to made by the extent the holders payment of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined principal amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which prepaid. Each prefunding of L/C Obligations shall be treated made in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds4.4 hereof.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 2 contracts
Samples: Post Petition Credit Agreement (Pilgrims Pride Corp), Post Petition Credit Agreement (Pilgrims Pride Corp)
Mandatory. (i) (A) If (1) any Restricted The Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which shall prepay the Committed Loans as hereinafter provided in an aggregate amount equal to 100% of the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess received by any Loan Party from all Involuntary Dispositions with respect to Collateral within five (5) days of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject with respect to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)such Involuntary Disposition; provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifhowever, on or prior to such datethat, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt Involuntary Disposition of the type described in clause (ba) of the definition thereof (such Indebtedness required definition, so long as no Default shall have occurred and be continuing and such casualty occurs prior to be so prepaid November 22, 2023, all or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the any portion of the Subject such Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer be so applied at the amount election of the relevant declined prepayment Company (as notified by the Company to any Term Lender or any holder of Other Applicable Indebtedness.
(iithe Administrative Agent) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all extent such Loan Party reinvests such Net Cash Proceeds received therefrom on in restoration or prior to repair of the date which is five Business Days applicable loss, destruction or damage of such Collateral within 180 days after the receipt of such Net Cash Proceeds; provided that if such Net Cash Proceeds shall have not been so reinvested shall be immediately applied to prepay the Committed Loans.
(ii) 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) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to clause (i) of this Section 6.01(a2.05(b) and shall be applied, to the related Compliance Certificate has been or is required to be delivered remaining principal repayment installments of the Loans (including any payment due on the Maturity Date) in inverse order of maturity. Each prepayment of Loans pursuant to clause (ii) of this Section 6.02(a)2.05(b) shall be applied, commencing with to the first full Fiscal Year ending after remaining principal repayment installments of the Closing Loans (including any payment due on the Maturity Date) on a pro rata basis. 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 Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (prepaid through the “ECF Prepayment Amount”)date of prepayment.
Appears in 2 contracts
Samples: Credit Agreement (Sonic Automotive Inc), Credit Agreement (Sonic Automotive Inc)
Mandatory. (i) If (A) If any Loan Party Disposes of any property (1other than pursuant to clause (i), (ii), (iii), (iv) any Restricted Company consummates a Prepayment Asset Sale or (2v) of Section 5.02(e)) or (B) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company Loan Party of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearU.S.$20,000,000, the Borrower shall cause to be prepaid on or prior make a prepayment in an aggregate principal amount of Advances equal to the date which is ten product of (I) 100% of such Net Cash Proceeds less the percentage of such Net Cash Proceeds reinvested in accordance with this Section 2.08(b)(i) (such net percentage, the “Asset Percentage”) and (II) the Net Cash Proceeds realized or received with respect to (y) a Disposition, within 60 days and (z) a Casualty Event, within five Business Days Days, in each case, after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectivelyby such Loan Party; provided that, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.08(b)(i) ifwith respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention (or such Loan Party’s) reinvestment of, or written intent to reinvest all or entry into a portion legally binding commitment to reinvest, such Net Cash Proceeds in assets useful for its business within 90 days following receipt of such Subject Net Cash Proceeds (the “Reinvestment Period”) (and, in accordance with Section 2.06(b)(i)(B).
the case of any such written intent or binding commitment, the reinvestment contemplated by such written intent or binding commitment shall have been consummated within 180 days (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at such longer period as requested by the option Borrower and agreed by the Required Lenders following the last day of the Borrower, and Reinvestment Period)); provided that (1) so long as no an Event of Default shall have occurred and be continuing, the Borrower may reinvest all or no Loan Party shall be permitted to make any portion such reinvestments (other than pursuant to a legally binding commitment that such Loan Party entered into at a time when no Event of such Subject Proceeds in the business of the Restricted Companies within Default is continuing) and (x) 15 months following receipt of such Subject Proceeds or (y2) if any proceeds are not so reinvested by the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that deadlines specified above or if any Net Cash Proceeds such proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicableelection, an amount equal to the Asset Percentage of any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessAdvances.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which The Borrower shall be treated in accordance with Section 2.19), required to prepay all Advances upon the Borrower shall cause to be prepaid an aggregate principal amount occurrence of Term Loans in an amount equal to 100% a Change of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsControl.
(iii) Within ten Business Days after financial statements have been If any Governmental Authority (A) condemns, nationalizes, seizes, attaches, compulsorily acquires, confiscates or are required otherwise expropriates (directly or indirectly through measures tantamount to be delivered pursuant expropriation) all or substantially all of the property or the assets of any Loan Party or of the share capital of any Loan Party, (B) assumes custody or control of all or substantially all of the property or the assets, or of the business or operations, of any Loan Party or of the share capital of any Loan Party, (C) takes or directs any action for the dissolution or disestablishment of any Loan Party or any action that would prevent any Loan Party from carrying on all or substantially all of its business or operations or (D) takes any administrative action or enacts any law to Section 6.01(a) and effect any of the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a)foregoing, commencing with the first full Fiscal Year ending after the Closing Datethen, in each case, the Borrower shall cause the Subject Loans be required to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)prepay all Advances within 45 days after such occurrence.
Appears in 2 contracts
Samples: Credit Agreement (Grana & Montero S.A.A.), Credit Agreement (Grana & Montero S.A.A.)
Mandatory. If, prior to the Conversion Date:
(i) (A) If the Borrower or any of its Subsidiaries shall (1) incur any Indebtedness, Disqualified Stock or Preferred Stock which serves to refund or refinance any Indebtedness, Disqualified Stock or Preferred Stock incurred as permitted under Section 6.03(1)(w), (1)(x), (2), (13) or (14) (as it relates to Section 6.03(2) and (14) only) or any Indebtedness, Disqualified Stock or Preferred Stock issued to so refund or refinance such Indebtedness, Disqualified Stock or Preferred Stock, including additional Indebtedness, Disqualified Stock or Preferred Stock incurred to pay premiums (including reasonable tender premiums), defeasance costs and fees in connection therewith or (2) issue any debt securities (including any Securities issued pursuant to a Securities Demand), then an amount equal to 100% of the Net Proceeds thereof shall be applied promptly (but in no event later than three Business Days) after the receipt thereof toward the prepayment of the Initial Loans;
(ii) the Borrower, Holdings or any of the Borrower’s Restricted Company consummates a Subsidiaries shall issue any public equity securities (other than (1) to the Equity Investors, (2) in connection with an acquisition permitted by the terms of this Agreement and (3) to employees pursuant to employee benefit plans in effect on the Closing Date), then an amount equal to 100% of the Net Proceeds thereof shall be applied promptly (but in no event later than ten Business Days) after the receipt thereof toward the prepayment of the Initial Loans; or
(iii) the Borrower or any of its Restricted Subsidiaries shall receive Net Proceeds in respect of any Prepayment Asset Sale or (2) any Casualty Event occursProperty Loss Event, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess then an amount equal to 100% of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as Net Proceeds thereof, (subject to the restrictions set forth herein) shall be applied promptly (but not in no event later than ten Business Days) after the receipt thereof toward the prepayment of the last day of the most recently ended Test Period Initial Loans; provided that if (the “De Minimis Proceeds Threshold”A) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall is required to be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such datemade, the Borrower shall have given written notice to notifies the Administrative Agent of its intention intent to reinvest all or a portion of such Subject Net Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized assets of a kind then used or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied usable in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option business of the Borrower, Borrower and so long as its Restricted Subsidiaries (including any Related Business Assets) and (B) no Event of Default shall have occurred and be continuing at the time of such proposed reinvestment, and no Event of Default under clause (a) or (f) of Section 7.01 (each, a “Specified Default”) shall have occurred and shall be continuing at the time of proposed reinvestment (unless, in the case of such Specified Default, such reinvestment is made pursuant to a binding commitment entered into at a time when no Specified Default was continuing), then the Borrower may reinvest all or any portion shall not be required to prepay Initial Loans hereunder in respect of such Subject Net Proceeds in to the business extent that such Net Proceeds are so reinvested within 365 days after the date of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; providedProceeds (or, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during within such 15-month period or 21-month 365 day period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries enters into a binding commitment to so reinvest in such Net Proceeds, and such Net Proceeds are so reinvested within 180 days after such binding commitment is required so entered into); provided, however, that if any Net Proceeds are not reinvested or applied as a repayment on or prior to repay or prepayment any First Lien Debt the last day of the type described in clause (b) of the definition thereof (applicable application period, such Indebtedness required to Net Proceeds shall be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis applied within five Business Days to the prepayment of the Subject Initial Loans and as set forth above (without regard to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such timeimmediately preceding proviso); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)or
Appears in 2 contracts
Samples: Senior Subordinated Bridge Loan Agreement (CDW Finance Corp), Senior Bridge Loan Agreement (CDW Finance Corp)
Mandatory. (i) (A) If (1) for any Restricted Company consummates a Prepayment Asset Sale or (2) reason the Total Revolving Outstandings at any Casualty Event occurs, which time exceed the Aggregate Revolving Commitment then in effect for the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearRevolving Facility at such time, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event event, within ten one (1) Business Days after Day) prepay Revolving Loans, Swingline Loans and L/C Borrowings (together with all accrued but unpaid interest thereon) and/or Cash Collateralize the date of L/C Obligations in an aggregate amount equal to such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with excess; provided, however, that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer Cash Collateralize the amount L/C Obligations pursuant to this Section 2.05(b)(i) unless, after the prepayment of the relevant declined Revolving Loans and Swingline Loans, the Total Revolving Outstandings exceed the Aggregate Revolving Commitment then in effect for the Revolving Facility at such time; provided that if any such excess shall result solely from a change in the applicable exchange rates relating to Alternative Currencies, then such prepayment and/or Cash Collateralization shall only be required to any Term Lender or any holder of Other Applicable Indebtednessbe made by the Borrower upon three (3) Business Days’ notice from the Administrative Agent.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued Except as otherwise provided in Section 2.15, prepayments of the Revolving Facility made pursuant to this Section 7.03 (other than Refinancing Indebtedness which 2.05(b), first, shall be treated in accordance with Section 2.19)applied ratably to the L/C Borrowings and the Swingline Loans, second, shall be applied to the outstanding Revolving Loans, and, third, shall be used 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 Borrower shall cause or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on reimburse the applicable L/C Issuer or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsRevolving Lenders, as applicable.
(iii) Within ten If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Letter of Credit Sublimit then in effect, then, within three (3) Business Days after financial statements have been or are required receipt of such notice, the Borrowers shall prepay Loans and/or Cash Collateralize Letters of Credit in an aggregate amount sufficient to be delivered reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Letter of Credit Sublimit then in effect. Within the parameters of the applications set forth above in Section 2.05(b), prepayments pursuant to Section 6.01(a2.05(b) shall be applied first to Base Rate Loans and the related Compliance Certificate has been or is required then to Eurodollar Rate Loans in direct order of Interest Period maturities. All prepayments under Section 2.05(b) shall be delivered pursuant subject to Section 6.02(a)3.05, commencing with but otherwise without premium or penalty, and shall be accompanied by interest on the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (prepaid through the “ECF Prepayment Amount”)date of prepayment. DB1/ 88815292.10
Appears in 2 contracts
Samples: Credit Agreement (Vertex Pharmaceuticals Inc / Ma), Credit Agreement (Vertex Pharmaceuticals Inc / Ma)
Mandatory. (i) The Revolving Facility shall be automatically and permanently reduced by an amount equal to $50,000,000 (provided, that, in no event shall the Revolving Facility be reduced to less than $150,000,000) (such reduction of the Revolving Facility, to the extent it occurs, a “Revolving Facility Reduction Event”) on the earliest to occur of (A) If the date of the Disposition of the Corporate Headquarters, (1B) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or date of receipt by any Restricted Company Loan Party of Net Cash Proceeds from an Involuntary Disposition of the Corporate Headquarters in an aggregate amount in excess of $5,000,000 to the greater of $20,000,000 and 15.5% of Consolidated EBITDA extent such Net Cash Proceeds are not reinvested in assets (excluding current assets as classified by GAAP) that are useful in the business of the last day Borrower and its Subsidiaries within eighteen (18) months of the most recently ended Test Period date of such Involuntary Disposition (it being understood that any such Net Cash Proceeds not so reinvested shall be deemed to have been received on the Business Day immediately following the expiration of such eighteen (18) month period), and (C) the date that is the first anniversary of the Closing Date (the “De Minimis Proceeds ThresholdMortgage Notice Date”); provided, that, in the case of this clause (C), if the Borrower has delivered written notice to the Lender electing to grant a Mortgage (subject to Permitted Liens) in the Corporate Headquarters in favor of the Lender for the benefit of the Secured Parties to secure the Secured Obligations (the “Collateral Notice”) in any Fiscal Yearon or prior to the Mortgage Notice Date, the Revolving Facility shall not be reduced pursuant to this Section 2.05(b)(i)(C) so long as the Borrower shall cause to be prepaid have, on or prior to the date which that is ten Business Days ninety (90) days (or such extended period of time as agreed to by the Lender in its reasonable discretion) after the date Mortgage Notice Date, provided to the Lender a Mortgage and such Mortgaged Property Support Documents as the Lender may request to cause the Corporate Headquarters to be subject at all times to a Mortgage (subject to Permitted Liens) in favor of the realization Lender for the benefit of the Secured Parties to secure the Secured Obligations. For the avoidance of doubt, the automatic and permanent reduction in the Revolving Facility on the dates contemplated in clauses (A) and (B) above shall occur at any time such Disposition occurs or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodreceived, as applicable, an amount equal whether prior to any such Net Cash Proceeds shall within ten Business Days be applied or after the date the Borrower delivers the Collateral Notice and/or the a Mortgage and Mortgaged Property Support Documents for the Corporate Headquarters pursuant to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
clause (C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If after giving effect to any Restricted Company incurs reduction or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to termination of the Revolving Facility under this Section 7.03 (other than Refinancing Indebtedness which 2.05, the Letter of Credit Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit, as the case may be, shall be treated in accordance with Section 2.19), automatically reduced by the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceedsexcess.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 2 contracts
Samples: Credit Agreement (Zynga Inc), Credit Agreement (Zynga Inc)
Mandatory. (i) (A) If (1) for any Restricted Company consummates a Prepayment Asset Sale or (2) reason the Total Outstandings at any Casualty Event occurs, which time exceed the Aggregate Commitments then in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yeareffect, the Borrower shall cause to be prepaid on or prior to immediately prepay Loans and/or Cash Collateralize the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds L/C Obligations in an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 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) Upon completion of (i) any early termination of any Hedge Transaction used in determining the Borrowing Base on the immediately preceding Determination Date or (ii) the Disposition of any assets included in the Borrowing Base on the immediately preceding Determination Date, the effect of which termination or Disposition would be a reduction in the Borrowing Base then in effect of 10.0% or more on a pro forma basis, the Borrowing Base shall immediately and automatically upon consummation of such transaction be reduced by the Borrowing Base contribution of such Hedge Transaction or assets, and all Net Cash Proceeds received in excess from the termination of such Hedge Transaction or the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no Disposition of such prepayment assets shall be required pursuant applied to this Section 2.06(b)(i)(A) if, on reduce or prior to eliminate any Borrowing Base Deficiency resulting from such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B)reduction.
(Aiii) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ATo the extent not covered by (ii), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay Disposes of any property under Section 7.05(g) or prepayment any First Lien Debt suffers a Casualty Event which results in the realization by such Person of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveNet Cash Proceeds, the Borrower shall use the Net Cash Proceeds to eliminate any Borrowing Base Deficiency resulting from such sale; provided that, the proceeds of any Disposition permitted by Section 7.05(g) shall not be required constitute Net Cash Proceeds to subsequently offer the amount extent that (A) such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Restricted Subsidiary of a kind then used or usable in the business of the relevant declined prepayment applicable Person (with equal or greater aggregate Attributed Value) within 180 days from the date of receipt thereof or (B) if the applicable Borrower or Restricted Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such proceeds as part of a like-kind exchange under Section 1031 of the Code, the potential replacement properties or assets are identified by such Borrower or Restricted Subsidiary within 180 days from the date the ownership to the sold 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; provided further that, the proceeds of any Term Lender Casualty Event shall not constitute Net Cash Proceeds to the extent that such proceeds are reinvested in replacement properties or any holder assets, or other productive properties or assets, acquired by the Borrower or a Guarantor of Other Applicable Indebtednessa kind then used or usable in the business of the applicable Person (with equal or greater aggregate Attributed Value) within 180 days from the date of receipt thereof.
(iiiv) If Upon the incurrence or issuance by the Borrower or any of its Restricted Company incurs or issues Subsidiaries of any Indebtedness not (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or prior such Restricted Subsidiary (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clause (v) below).
(iiiv) Within ten Business Days after financial statements have been or are required to be delivered Prepayments of the Total Outstandings made pursuant to this Section 6.01(a) and 2.06(b), first, shall be applied ratably to the related Compliance Certificate L/C Borrowings, second, shall be applied ratably to the outstanding Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing DateCash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower shall cause or any other Loan Party) to reimburse the Subject Loans to be prepaid in an aggregate principal amount (L/C Issuer or the “ECF Prepayment Amount”)Lenders, as applicable.
Appears in 2 contracts
Samples: Credit Agreement (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Mandatory. (i) [Reserved].
(Aii) If any of the Borrowers or any Non-Borrower Subsidiary (1other than the Insurance Subsidiary) Disposes of any Restricted Company consummates a Prepayment Asset Sale or property (2) any Casualty Event occurs, which other than sales of inventory in the aggregate ordinary course of business, and other than any Excluded Asset Disposition and other than the Permitted Xxxxxxxxx Disposition) which, in any such case, results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower Borrowers shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all the Net Cash Proceeds received therefrom in excess of $30,000,000 in the De Minimis aggregate for the Net Cash Proceeds Threshold received from all such Dispositions during the immediately preceding twelve month period (collectivelycalculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, the “Subject Proceeds”as applicable); providedprovided that, that no such prepayment shall be required pursuant with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.06(b)(i)(A) if2.05(b)(ii), on or prior to such date, at the Borrower shall have given written notice election of the Borrowers (as notified by the Borrowers to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at no later than 45 days after the option end of the Borrowerfiscal quarter during which such Disposition occurred), and so long as no Event of Default shall have occurred and be continuing, the Borrower Borrowers may reinvest all or any portion of such Subject Net Cash Proceeds in the business operating assets of the Restricted Companies Borrowers so long as (A) within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following 330 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any such case, 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 the Net Cash Proceeds received therefrom in excess of $30,000,000 in the aggregate for the Net Cash Proceeds received from all such Recovery Events during the immediately preceding twelve month period (calculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable); providedprovided that, that if with respect to any Net Cash Proceeds are realized under a Recovery Event described in this Section 2.05(b)(iii), at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent no longer intended to later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred), and so long as no Event of Default shall have occurred and be so reinvested at continuing, the Borrowers may reinvest all or any time after delivery portion of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to in the prepayment replacement or restoration of any properties or assets in respect of which such Net Cash Proceeds were paid or operating assets of the Term Loans Borrowers so long as set forth in this Section 2.06(A) within 330 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement (including, without limitation, a construction agreement) to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(Biv) [Reserved].
(C) If, at Upon the time that incurrence or issuance by the Borrowers of any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower Borrowers shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior immediately upon receipt thereof by the Borrowers (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clauses (v) and (viii) below, as applicable).
(iiiv) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to the foregoing provisions of this Section 6.01(a2.05(b) shall be applied, first, to the Term Facility and to the related Compliance Certificate has been or is required principal repayment installments thereof as directed by the Borrowers and specified in the notice of prepayment, (provided that in the event that the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be delivered pursuant deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal of such Term Loans in reverse order of maturity) and, second, to the Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viii) of this Section 2.05(b). Subject to Section 6.02(a)2.18 and clause (vi) below, commencing such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)relevant Facilities.
Appears in 2 contracts
Samples: Specified Acquisition Loan Joinder (Casella Waste Systems Inc), Credit Agreement (Casella Waste Systems Inc)
Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any property (Aother than any Disposition of any property permitted by Section 7.5(a), (b), (c), (d), (f), (g) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2h)) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds (in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of in the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) aggregate in any Fiscal Yearfiscal year unless an Event of Default has occurred and is continuing at the time of such Disposition in which case no Net Cash Proceeds shall be excluded from the mandatory prepayment requirements of this clause (i)), the Borrower shall cause prepay an aggregate principal amount of Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount within 10 Business Days of Initial Term Loans and any Additional Term Loans then subject receipt thereof by such Person (such prepayments to ratable prepayment requirements be applied as set forth in clause (the “Subject Loans”vi) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”below); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifhowever, on or prior to such datethat, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied Net Cash Proceeds realized under a Disposition described in XXXX:\98106221\28\78831.0005 accordance with this Section 2.06(b)(i)(A2.6(b)(i), at the option election of the Borrower, and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds in property useful to its business so long as the Borrower or such Subsidiary has consummated such purchase or entered into a binding contract with respect to such purchase within 365 days after the receipt of such Net Cash Proceeds; and provided further, however, that any Net Cash Proceeds not subject to such binding contract or so reinvested shall be applied within 10 Business Days after such period to the prepayment of the Loans as set forth in this Section 2.6(b)(i).
(ii) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Capital Stock (other than Excluded Issuances and any sales or issuances of Capital Stock to another Group Member) at any time while an Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five within 10 Business Days after of receipt thereof by the receipt of Borrower or such Net Cash ProceedsSubsidiary (such prepayments to be applied as set forth in clause (vi) below).
(iii) Within ten Business Days after financial statements have been Upon the incurrence or are required issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be delivered incurred or issued pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a7.2), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within 10 Business Days of receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the “ECF Prepayment Amount”account of the Borrower or any of its Subsidiaries at any time while an Event of Default shall have occurred and be continuing, and such Extraordinary Receipt is not otherwise included in clause (i), (ii) or (iii) of this Section 2.6(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom within 10 Business Days of receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below).
(v) Upon the occurrence of any 2007 Convertible Notes Maturity Condition, the Borrower on November 21, 2011 shall prepay in full all of the Loans and all other amounts owing under this Agreement and under any of the other Loan Documents and the Borrower shall Cash Collateralize the L/C Obligations in an amount equal to 105% of the aggregate then undrawn and unexpired amount of the then outstanding Letters of Credit.
(vi) Each prepayment of Loans pursuant to the provisions of Section 2.6(b)(i) through (iv) above shall be applied ratably to the Term Loan Facility and to the principal repayment installments thereof on a pro-rata basis.
(vii) Each prepayment of Loans pursuant to the provision of Section 2.6(v) above shall be applied first to the Term Loans and then to the Revolving Credit Facility as follows: first, shall be applied ratably to the Reimbursement Obligations and the Swingline Obligations, second, shall be applied ratably to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, the Revolving Credit Facility shall be automatically and permanently reduced to -0-. 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 Borrower or any other Loan Party) to reimburse the Issuing Lender or the Revolving Lenders, as applicable.
(viii) If for any reason the Total Revolving Extensions of Credit at any time exceed the Total Revolving Commitments then in effect, the Borrower shall immediately prepay the Revolving Loans and Reimbursement Obligations in an amount equal to such excess.
Appears in 2 contracts
Samples: Credit Agreement (National Financial Partners Corp), Credit Agreement (National Financial Partners Corp)
Mandatory. (i) [Reserved.]
(Aii) If Other than in connection with a Cost-Cutting Transaction (1solely to the extent the proceeds thereof are incorporated into the Approved Budget effective as of the date of the applicable Cost-Cutting Transaction and solely to the extent such proceeds are used as and when contemplated thereby), if any Loan Party or any of its Subsidiaries (x) Disposes of any Restricted Company consummates property in a Prepayment Disposition constituting an Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds, (y) receives Net Cash Proceeds of casualty insurance or condemnation awards (or from payments in excess lieu thereof) (excluding for purposes of this clause (y) any Net Cash Proceeds from “Recoveries” (as defined in the AWA Environmental Indemnity Agreement and the PDC Environmental Indemnity Agreement), which must be paid to AWA under the terms of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period applicable Fox River Indemnity Arrangements) or (the “De Minimis Proceeds Threshold”z) in incurs or issues any Fiscal YearIndebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements within five (the “Subject Loans”5) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess Business Days of the De Minimis Proceeds Threshold receipt thereof by such Person (collectively, the “Subject Proceeds”such prepayments to be applied as set forth in clause (iii) below); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifhowever, on or prior to such datethat, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, with respect to any prepayment of Term Loans required to be made pursuant to the preceding clause (x) above in this Section 2.05(b)(ii), subject to the consent of the Required Lenders (in their sole discretion), if such prepayment would result in the prepayment of one or more Eurodollar Rate Loans on a day other than the last day of the then current Interest Period for each such Eurodollar Rate Loan, the Borrower may defer the relevant portion of such required payment until the last day of the relevant then current Interest Period of each such applicable Eurodollar Rate Loan (provided that such deferral period shall in no case exceed sixty (60) days, provided further that, upon the occurrence of an Event of Default or the Termination Date during any such deferral period, the Borrower shall immediately prepay Term 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)(ii) (without giving effect to this clause (A)) but which have not previously been so applied) and (B) with respect to any Net Cash Proceeds of (1) any property constituting an Asset Sale otherwise required to be applied under preceding clause (x) above in this Section 2.05(b)(ii), or (2) casualty insurance or condemnation awards (or from payment in lieu thereof) otherwise required to be applied under preceding clause (y) above in this Section 2.05(b)(ii), then in each case, subject to the prior written consent of the Required Lenders (in their sole discretion), such Loan Party or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets on terms and conditions reasonably agreed to by the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereofRequired Lenders; and provided further, 21 months following receipt of such Net Cash Proceeds; providedhowever, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodof, as applicable, Asset Sales or casualty insurance or condemnation awards (or from payment in lieu thereof) not so reinvested shall be promptly applied if an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied Event of Default has occurred and is continuing to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness2.05(b)(ii), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required Subject to be delivered Section 2.05(c), if applicable, each prepayment of Term Loans pursuant to the foregoing provisions of this Section 6.01(a2.05(b) shall be applied first, to the outstanding NM Term Loans; and second, to the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)outstanding Roll-up Loans.
Appears in 2 contracts
Samples: Credit Agreement (Paperweight Development Corp), Dip Facility Agreement
Mandatory. (i) The Borrower shall, on the third Business Day following the receipt by the Borrower after the Effective Date of (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period from any Asset Sales or (the “De Minimis Proceeds Threshold”B) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds from the incurrence of any Bridge Debt, offer to prepay, on a pro rata basis, an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt Banks’ Ratable Share of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) Proceeds and the related Compliance Certificate has been Term Loan Banks shall have the option to accept or is required to be delivered pursuant to Section 6.02(a), commencing refuse such prepayment in accordance with the first provisions set forth in Section 2.10(c). Upon the payment in full Fiscal Year ending after of the Closing DateTerm Loans, the Borrower shall cause apply such Net Cash Proceeds to prepay the Subject Revolving Credit Loans outstanding at such time (without any reduction of Revolving Credit Loan Commitments, except as set forth in Section 2.09(b)(ii)).
(ii) The Borrower shall, on the third Business Day following the date of receipt of Net Cash Proceeds from the issuance of Debt by any Subsidiary of the Borrower permitted pursuant to be prepaid in 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 or a Subsidiary Guarantor), offer to prepay an aggregate principal amount of the Term Loans in an aggregate amount equal to the Banks’ Ratable Share of such Net Cash Proceeds (other than $200,000,000 of additional Debt of IPALCO and the “ECF Prepayment Amount”Subsidiary Guarantors 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 prepay the Revolving Credit Loans outstanding at such time (without any reduction of Revolving Credit Loan Commitments).
Appears in 2 contracts
Samples: Credit and Reimbursement Agreement (Aes Corp), Credit and Reimbursement Agreement (Aes Corp)
Mandatory. (i) (A) If (1) for any Restricted Company consummates a Prepayment Asset Sale or (2) reason the Total Revolving Outstandings at any Casualty Event occurs, which in time exceed the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearRevolving Facility at such time, the Borrower Borrowers shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term immediately prepay Revolving Loans and any Additional Term Loans then subject to ratable prepayment requirements L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the “Subject Loans”L/C Borrowings) in an aggregate amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion 103% of such Subject Proceeds excess or otherwise in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined and/or in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, reasonably acceptable to the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednessapplicable L/C Issuer.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued Prepayments of the Revolving Facility made pursuant to this Section 7.03 (other than Refinancing Indebtedness which 2.04(b), first, shall be treated in accordance with Section 2.19)applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Revolving Loans, and, third, shall be used 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 any Borrower shall cause or any other Loan Party) to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on reimburse the applicable L/C Issuer or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsRevolving Lenders, as applicable.
(iii) Within ten Business Days If as a result of any conveyance, sale, lease, transfer or other disposition by the Company and its Subsidiaries (other than MGP or its Subsidiaries) after financial statements have been the Closing Date, (1) the Company’s indirect beneficial ownership of the outstanding MGM China Shares falls below 30% of the aggregate amount of all issued and outstanding MGM China Shares at the time of such conveyance, sale, lease, transfer or are required other disposition (on a fully diluted basis but without giving effect to be delivered pursuant to Section 6.01(a) and any additional equity issuances by MGM China after the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(aClosing Date), commencing (2) the Company (excluding for this purpose, MGP and its Subsidiaries) shall cease to directly or indirectly beneficially own, in the aggregate, the MGP Class A Shares and OP Units representing at least 30% of the sum of (A) the outstanding MGP Class A Shares and (B) the OP Units outstanding (other than OP Units owned by MGP or its Subsidiaries), in each case at the time of such conveyance, sale, lease, transfer or other disposition (on a fully diluted basis but without giving effect to any additional equity issuances by MGM Growth Properties Operating Partnership after the Closing Date), (3) the Borrower Group disposes of or transfers the MGP Class B Share in a transaction (other than an equity issuance by MGM Growth Properties Operating Partnership of OP Units after the Closing Date) in which the Borrower Group receives Net Available Proceeds that relate solely to the disposition or transfer of the MGP Class B Share or (4) in connection with the first full Fiscal Year ending any additional equity issuance by MGM Growth Properties Operating Partnership of OP Units after the Closing Date, the Borrower Group disposes of or transfers the MGP Class B Share in a transaction in which the Borrower Group receives Net Available Proceeds that relate solely to the disposition or transfer of the MGP Class B Share (any such disposition or other transfer described in clause (1), (2), (3) or (4), a “Specified Disposition”), then within ten (10) Business Days (subject to extension as needed to obtain any required Gaming Approvals or to comply with any applicable Gaming Laws) after the date of receipt of the Net Available Proceeds by the Borrower Group from such Specified Disposition, the Revolving Commitments shall be permanently reduced in an amount (and, solely to the extent then outstanding, the Revolving Loans shall be repaid in a corresponding amount) equal to (A) (x) during the Covenant Relief Period, 75% and (y) thereafter, 50%, in each case, of the Net Available Proceeds of any such Specified Disposition received by the Borrower Group that represent (B) (x) the portion of such Net Available Proceeds attributable to the Equity Interests below the 30% thresholds described in clauses (1) and (2) above and (y) in the case of clauses (3) and (4) above, such Net Available Proceeds that relate solely to the disposition or transfer of the MGP Class B Share (such prepayment or reduction, a “Specified Disposition Prepayment/Reduction”; and the amount required to be prepaid/reduced by the Company, the “Required Specified Disposition Prepayment/Reduction Amount”); provided that:
(I) for the avoidance of doubt, if any Net Available Proceeds are received by an Unrestricted Subsidiary (other than MGP and its Subsidiaries) or Designated Restricted Entity from a Specified Disposition, then no such Specified Disposition Prepayment/Reduction shall be required unless such Net Available Proceeds have been distributed to, or otherwise received by, the Borrower Group; and
(II) the Company shall use commercially reasonable efforts (as determined by the Company in its sole discretion) to (x) cause the Subject Loans Required Specified Disposition Prepayment/Reduction Amount of any such Net Available Proceeds received by an Unrestricted Subsidiary (other than MGP and its Subsidiaries) or Designated Restricted Entity to be prepaid in an aggregate principal amount distributed or otherwise transferred to the Company or a Restricted Subsidiary for application to the Specified Disposition Prepayment/Reduction and (y) until such distribution or transfer occurs, cause such Unrestricted Subsidiary or Designated Restricted Entity to deposit and retain the Required Specified Disposition Prepayment/Reduction Amount of such Net Available Proceeds (the “ECF Prepayment AmountRetained Proceeds”) in a segregated account (or make other arrangements reasonably acceptable to the Company and the Administrative Agent). All cash or Cash Equivalents received by the Company and its Restricted Subsidiaries from dividends or other distributions from an Unrestricted Subsidiary (other than MGP and its Subsidiaries) or Designated Restricted Entity that holds, directly or indirectly, Retained Proceeds (regardless of the source of such cash or Cash Equivalents, including from recurring or special dividends from MGM China) shall (x) be deemed to be a distribution of such Retained Proceeds, (y) be subject to the Specified Disposition Prepayment/Reduction requirements set forth in subclause ((II) above until all such Retained Proceeds have been (or have been deemed to have been) distributed to the Company and its Restricted Subsidiaries and (z) for the avoidance of doubt, reduce the Required Specified Disposition Prepayment/Reduction Amount and the amount of Retained Proceeds required to be held in a segregated account. Each such Lender may reject all or a portion of its pro rata share of any Specified Disposition Prepayment/Reduction required to be made pursuant to this Section 2.04(b)(iii) (such declined amounts, the “Declined Proceeds”) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the Company no later than 5:00 p.m. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from the Administrative Agent regarding such Specified Disposition Prepayment/Reduction. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the amount to be rejected, any such failure will be deemed an acceptance of the total amount of such Specified Disposition Prepayment/Reduction to which such Lender is otherwise entitled. Any Declined Proceeds remaining thereafter shall be retained by the Company.
Appears in 2 contracts
Samples: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International)
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net On each Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearFlow Payment Date, the Borrower shall cause prepay an aggregate principal amount of the Term B Loans in accordance with priority eighth of Section 3.2 of the Security Deposit Agreement and priority first of Section 3.7 of the Security Deposit Agreement, in an amount equal to be seventy-five percent (75%) (subject to the provisos below, the “Cash Sweep Percentage”) of the aggregate amount remaining on deposit in or credited to the Revenue Account after giving effect to the withdrawals and transfers on such Cash Flow Payment Date pursuant to priorities first through seventh of Section 3.2 of the Security Deposit Agreement; provided, that if at least $150,000,000 of the outstanding aggregate principal amount of Term B Loans have been prepaid on or prior to July 10, 2016 solely from Cash Flow Available for Debt Service, the date which is ten Business Days after the date Cash Sweep Percentage shall be reduced to fifty percent (50%); provided, further, that if at least $225,000,000 of the realization outstanding aggregate principal amount of Term B Loans have been prepaid on or receipt prior to July 10, 2018 solely from Cash Flow Available for Debt Service, the Cash Sweep Percentage shall be reduced to thirty- three percent (33%). Each such prepayment of such Net Cash Proceeds the Term B Loans shall be applied to scheduled principal payments of the Term B Loans in inverse order of maturity (including the principal amount due on the Term B Maturity Date).
(ii) Subject to the Security Deposit Agreement, upon the occurrence of a Casualty Event, Event of Eminent Domain, Asset Sale or the incurrence or issuance of any Debt (other than Debt permitted to be incurred pursuant to Section 5.02(b)), the Borrower shall (A) prepay an aggregate principal amount of Initial Term the Loans and any Additional Term Loans then subject to ratable prepayment requirements (B) deposit an amount in the “Subject Loans”) Revolving L/C Cash Collateral Account in an aggregate amount equal to Required Net Proceed Percentage of all the Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds thereof in accordance with priorities first through third of Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option 3.7 of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of Security Deposit Agreement. Each such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term B Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay scheduled principal payments of the Subject Term B Loans in accordance with inverse order of maturity, including the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of due on the Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsB Maturity Date.
(iii) Within ten Business Days after financial statements have been [Reserved.]
(iv) If at any time (A) the sum of the aggregate outstanding balance of the Revolving Credit Loans and the Available Amount of all Revolving Letters of Credit exceeds the aggregate Revolving Credit Commitments or are required to be delivered (B) the Available Amount of all Revolving Letters of Credit exceeds the aggregate Revolving Letter of Credit Commitments, whether because of a reduction of the Revolving Credit Commitments and/or Revolving Letter of Credit Commitments pursuant to Section 6.01(a2.05(b) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Dateotherwise, the Borrower shall cause within two (2) Business Days, first, repay the Subject Revolving Credit Loans and, second, if necessary, transfer funds to be prepaid the Revolving L/C Cash Collateral Account in an aggregate amount sufficient to eliminate such excess in accordance with this Agreement.
(v) All prepayments under this clause (b) shall be made together with (A) accrued and unpaid interest to the date of such prepayment on the principal amount prepaid, (the “ECF Prepayment Amount”)B) any amounts owing pursuant to Section 9.04(c) and (C) any applicable Yield Maintenance Fee.
Appears in 1 contract
Samples: First Lien Credit and Guaranty Agreement (Talen Energy Supply, LLC)
Mandatory. (i) If at any time the sum of the Loan Balance and the L/C Exposure exceeds the lesser of (A) If the aggregate Commitments and (1B) any Restricted Company consummates a Prepayment Asset Sale or the Borrowing Base then in effect (2) any Casualty Event occurs, which other than due to an optional reduction in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearCommitments pursuant to Section 2.12), the Borrower Borrowers shall cause to be prepaid on or prior to (w) within 10 days of notice from the date which is ten Business Days after the date of the realization or receipt Agent of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (occurrence, repay the “Subject Loans”) in Lenders an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion amount of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to excess, including any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A)unpaid accrued interest on the amount prepaid, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt within 10 days of notice from the Agent of such Subject Proceeds or (y) if occurrence, indicate the Borrower enters into a contract Borrowers' election to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, pay the Lenders an amount equal to the amount of such excess, including any unpaid accrued interest on the amount to be prepaid, in six equal consecutive monthly installments with the first such Net Cash Proceeds installment being due and payable at the end of the calendar month in which such election is made, which payments shall be in addition to other principal payments due under this Agreement, (y) within ten Business Days be applied 10 days of notice from the Agent of such occurrence, indicate the Borrowers' election to, and within 30 days from such notice from the Agent, provide additional Collateral of character and value satisfactory to the prepayment Lenders in their sole discretion, to secure the amount of such excess by the Term Loans as set forth execution and delivery to the Lenders of Security Instruments in this Section 2.06.
form and substance satisfactory to the Agent, or (Bz) [Reserved].
(C) Ifwithin 10 days of notice from the Agent of such occurrence, at indicate its election to combine the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described options provided in clause (bx) of and clause (y) above, and provide the definition thereof (such Indebtedness required amount to be so prepaid or offered in installments and the amount to be so repurchased, “Other Applicable Indebtedness”) provided as additional Collateral. If the Borrowers elects the combined option in clause (or offer to repurchase such Other Applicable Indebtednessz), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that Borrowers shall (1) make such six equal consecutive monthly installments with the portion first such installment being due and payable at the end of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that calendar month in which such election is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereofmade, (and the remaining amount, if any, of the Subject Proceeds which payments shall be allocated in addition to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to other principal payments due under this Section 2.06(b)(i) shall be reduced accordingly Agreement and (2) within 30 days from such notice from the Agent, provide additional Collateral of character and value satisfactory to the extent the holders of the Other Applicable Indebtedness decline Lenders in their sole discretion, to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer secure the amount of such excess by the relevant declined prepayment execution and delivery to any Term Lender or any holder the Lenders of Other Applicable IndebtednessSecurity Instruments in form and substance satisfactory to the Agent.
(ii) If at any Restricted Company incurs or issues any Indebtedness not expressly permitted time the sum of the Loan Balance and the L/C Exposure exceeds the lesser of (A) aggregate Commitments and (B) the Borrowing Base, due to be incurred or issued an optional reduction in the Commitments pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)2.12, the Borrower Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in immediately repay the Lenders an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt amount of such Net Cash Proceedsexcess.
(iii) Within ten Business Days after financial statements have been or are In the event that a mandatory prepayment is required under this Section and the Loan Balance is less than the amount required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Dateprepaid, the Borrower Borrowers shall cause repay the Subject Loans entire Loan Balance and deposit into the Cash Collateral Account, as additional collateral securing the Obligations, an amount of cash, in immediately available funds, equal to be prepaid in an the L/C Exposure minus the lesser of (A) the aggregate principal amount Commitments and (B) the “ECF Prepayment Amount”)Borrowing Base.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 250,000 individually or on a cumulative basis in any Fiscal Yearfiscal year of Credit Parties, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt Borrower Representative shall promptly notify the Agent of such Subject Proceeds proposed Disposition or Event of Loss (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed including the amount of the Subject estimated Net Cash Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms received by such Credit Party or such Subsidiary in respect thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten five (5) Business Days Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $250,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested or (y) committed to be invested or reinvested, in each case as described in Borrower Representative’s notice with such 180-day period. Promptly after the date end of such rejection) 180-day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to prepay any outstanding Overadvances, then to the Subject outstanding Term Loans until paid in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Revolving Credit Commitments) abovethe Revolving Loans, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessSwing Loans, Reimbursement Obligations.
(ii) If after the Restatement Closing Date (x) there shall occur an IPO involving Holdings or any Restricted Company incurs IPO Issuer or issues any other Credit Party, or (y) any Credit Party or any Subsidiary shall issue any new equity securities (other than (a) equity securities issued in connection with the exercise of employee stock options, (b) equity securities issued in connection with the exercise of the Cure Right, (c) equity securities issued by a Subsidiary to another Credit Party, (d) equity securities sold to management and/or any employees of any Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness not expressly (other than that permitted by Section 6.11 hereof), then in each such case Borrower Representative shall promptly notify the Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be incurred received by or issued for the account of such Credit Party or such Subsidiary in respect thereof. On the date of receipt of the proceeds of any IPO, or otherwise promptly (and in any event within five (5) Business Days) upon receipt by such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption (other than an IPO) Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans and Reimbursement Obligations. Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) No later than five (5) Business Days after the earlier of (a) receipt by Agent of the audited financial statements required by Section 6.1(b) hereof and (b) the due date of the delivery of the audited financial statements required by Section 6.1(b) hereof, beginning with the fiscal year ending June 30, 2014, Borrowers shall prepay the then-outstanding Loans by an amount equal to 50% of Excess Cash Flow of Credit Parties and their Subsidiaries for the most recently completed fiscal year of Credit Parties; provided, however, that, commencing with the fiscal year ending June 30, 2015, if the Senior Leverage Ratio (determined as of the last day of such fiscal year and any fiscal year thereafter by reference to the Compliance Certificate delivered together with the financial statements delivered pursuant to Section 7.03 (other 6.1(b) for such fiscal year) is less than Refinancing Indebtedness which 1.25:1.00, Borrowers shall not be required to make a prepayment of Excess Cash Flow for such fiscal year. The amount of each such prepayment shall be treated applied first to the outstanding Term Loan until paid in accordance with full (applied on a pro rata basis over the remaining principal amortization payments thereof) and then to the Revolving Loans until paid in full, and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans, Reimbursement Obligations, without any reduction in commitments. Any voluntary prepayments of principal of the Term Loans and, solely to the extent accompanied by a permanent reduction on commitments, the Revolving Loans, made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by Borrowers under this Section 2.192.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required to be made under this Section 2.8(b)(iii) in any year following the year immediately subsequent to the year such voluntary payments were made.
(iv) Borrowers shall, (A) on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the amount of the aggregate Revolving Credit Exposures of all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Revolving Credit Commitments have been so reduced and (B)on each date the aggregate amount of Revolving Credit Exposures of all Lenders then outstanding exceeds the lesser of (x) the Revolving Loan Limit as determined based on the most recent Compliance Certificate (plus any Overadvances pursuant to Section 2.11(b)) and (y) the total Revolving Credit Commitments, prepay the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations and repay any Overadvances then due and payable pursuant to Section 2.11(b), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to such excess.
(v) Borrowers shall pay to the Agent when and as received by Borrowers and as a mandatory prepayment of the Obligations, a sum equal to the Cure Amount determined in accordance with Credit Parties’ exercise of Cure Rights pursuant to and in accordance with Section 7.7 hereof. The prepayment shall be applied unless otherwise agreed by the Agent (x) 100% of all Net Cash Proceeds received therefrom on such Cure Amount first to any outstanding Overadvances, then to the Term Loan, ratably, each such ratable amount to be applied against the remaining installments of principal of the Term Loan in the inverse order of their maturities, and thereafter to repay outstanding principal of the Revolving Loans (without a concomitant reduction in the Revolving Credit Commitments), and (y) if no Overandvances are outstanding and if the Term Loan, and Revolving Loans are paid in full, thereafter against the other Obligations, in such order as the Agent determines.
(vi) Unless Borrower Representative otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, Swing Loans or prior Eurodollar Loans, accrued interest thereon to the date which is five Business Days after of prepayment together with any amounts due the receipt Lenders under Section 8.1. Each prefunding of such Net Cash ProceedsL/C Obligations shall be made in accordance with Section 7.4.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, then (x) the greater Borrower shall promptly notify the Administrative Agent of $20,000,000 and 15.5% such proposed Disposition or Event of Consolidated EBITDA as Loss (including the amount of the last day estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the most recently ended Test Period (the “De Minimis Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100.0% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $5,000,000 for the applicable fiscal year; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements (invest or reinvest, as applicable, within 365 days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received from an Event of Loss or, in excess each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the De Minimis Proceeds Threshold Borrower and its Subsidiaries (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(Aother than current assets), at the option of the Borrower, and then so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section 2.8(b)(i) in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested or contractually committed to be invested or reinvested (and actually reinvested within such extension period) as described in the Borrower’s notice within such 365-day period (or such extension period). Promptly after the end of such 365-day period (or such extension period), the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the relevant declined applicable fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to any the outstanding Term Lender or any holder Loans until paid in full (such prepayments being applied ratably to the remaining installments of Other Applicable Indebtednessprincipal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Restricted Company incurs Subsidiary shall incur or issues assume any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with that permitted by Section 2.19)7.1, the Borrower shall cause promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or assumption to be prepaid an aggregate principal amount received by or for the account of Term Loans the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.1 or any other terms of this Agreement.
(iii) Within ten Business Days fifteen (15) days after annual financial statements have been or are required to be have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a6.1(b), commencing beginning with the first full Fiscal Year fiscal year ending after the Closing DateDecember 31, 2025, the Borrower shall cause prepay the Subject Obligations by an amount equal to (1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of such payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Flow prepayment under this clause (iii) for the prior year) or after the end of such calendar year and prior to the prepayment date in this clause (iii), and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 3.25:1.00 but equal to or greater than 2.75:1.00, then such percentage shall be reduced to 25.0% and (B) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 2.75:1.00, then such percentage shall be reduced to 0.0%. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(iv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Term SOFR Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in an aggregate principal amount (the “ECF Prepayment Amount”)case of any Term Loans or Term SOFR Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale Disposes of any property or assets pursuant to Section 7.05(l)(ii), 7.05(q), 7.05(s), 7.05(t) or 7.05(u) or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 5,000,000 in any Fiscal Yearfiscal year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Net Cash Proceeds in accordance with Section 2.06(b)(i)(B) (which election may only be made if no Event of Default has occurred and is then continuing).
; (AB) With respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale Disposition or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Net Cash Proceeds in the business acquisition, improvement or maintenance of assets useful in the operations of the Restricted Companies within (x) 15 12 months following receipt of such Subject Net Cash Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Net Cash Proceeds within such 15-12 month period following receipt thereof, 21 18 months following receipt of such Net Cash Proceeds; provided, provided that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during 43 such 15-12 month period or 21-18 month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
. (B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If ii)If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit and Guaranty Agreement
Mandatory. If the Borrower or any of its Subsidiaries Disposes of any property (iincluding any Disposition made under Section 7.05(f) (Abut excluding any other Disposition permitted under Section 7.05) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of $10,000,000 in the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) aggregate for all such Dispositions in any Fiscal Year, the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to the lesser of (A) 100% of such Net Cash Proceeds and (B) the aggregate outstanding amount of all Term Loans immediately upon receipt thereof by such Person (such prepayments to be prepaid on or prior applied as set forth in clause (iii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b), at the election of the Borrower (as notified by the Borrower to the date which is ten Administrative Agent within five Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in useful assets in the business of the Restricted Companies so long as within eighteen (x18) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements , such reinvestment shall have been consummated or are required a written commitment therefor shall have been signed (in either case, as reported in a notice provided by the Borrower in writing to be delivered pursuant the Administrative Agent); provided further, however, in the case of written commitment to Section 6.01(ainvest such Net Cash Proceeds within eighteen (18) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending months after the Closing Datereceipt of such Net Cash Proceeds, such reinvestment shall be consummated within twenty-four (24) months after the Borrower receipt of such Net Cash Proceeds; provided further, however, that any Net Cash Proceeds not subject to such written commitment or not so reinvested shall cause be promptly applied to the Subject prepayment of the Loans to be prepaid as set forth in an aggregate principal amount (the “ECF Prepayment Amount”this Section 2.05(b)(i).
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Mandatory. (i) (A) If (1) the U.S. Borrower or any Restricted Company consummates Domestic Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as 1,000,000 individually or on a cumulative basis in any fiscal year of the last day of Borrowers, then (x) the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the U.S. Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to promptly notify the Administrative Agent of its intention such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to reinvest all be received by the U.S. Borrower or a portion such Subsidiary in respect thereof) and (y) promptly upon receipt by the U.S. Borrower or such Subsidiary of the Net Cash Proceeds of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
Disposition or Event of Loss, the U.S. Borrower shall prepay the U.S. Term Loans (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, all outstanding Loans and so long as no U.S. L/C Obligations if an Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds exists) in the business an aggregate amount equal to 100% of the Restricted Companies within (x) 15 months following receipt amount of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of all such Net Cash Proceeds; providedprovided that in the case of each Disposition and Event of Loss, if the U.S. Borrower states in its notice of such event that if any the U.S. Borrower or the applicable Subsidiary intends to reinvest, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery from an Event of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodLoss, as applicable, an amount equal to any such the Net Cash Proceeds shall within ten Business Days be applied to thereof in assets for use in the prepayment ordinary course of the Term Loans U.S. Borrower's or the applicable Subsidiary's business as set forth in this Section 2.06.
(B) [Reserved].
(C) Ifthen conducted, at the time that any such prepayment would be required hereunderthen so long as no Default or Event of Default then exists, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the U.S. Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such assets with such 180-day period. Promptly after the end of such 180-day period, the U.S. Borrower shall notify the Administrative Agent whether the U.S. Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such assets, and to the extent such Net Cash Proceeds have not been so reinvested, the U.S. Borrower shall promptly prepay the U.S. Term Loans (or all outstanding Loans and U.S. L/C Obligations if an Event of Default exists) in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied on a ratable basis among the relevant declined prepayment outstanding Obligations based on the principal amounts thereof. If the Administrative Agent or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to any Term Lender disburse amounts representing such proceeds from the Collateral Account to or any holder at the U.S. Borrower's direction for application to or reimbursement for the costs of Other Applicable Indebtednessreplacing, rebuilding or restoring such Property.
(ii) If the Australian Borrower or any Restricted Company incurs Subsidiary thereof shall at any time or issues from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in excess of $1,000,000 individually or on a cumulative basis in any Indebtedness not expressly permitted fiscal year of the Borrowers, then (x) the Australian Borrower shall promptly notify the Administrative Agent and the Australian Lender of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be incurred received by the Australian Borrower or issued pursuant to Section 7.03 such Subsidiary in respect thereof) and (other than Refinancing Indebtedness which y) promptly upon receipt by the Australian Borrower or such Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, Penford Holdings shall be treated prepay the Australian Term Loans (or all outstanding indebtedness, liabilities and obligations of the Australian Borrowers under the Australian Credit Agreements if an Event of Default exists) in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of the amount of all such Net Cash Proceeds; provided that in the case of each Disposition and Event of Loss, if the Australian Borrower states in its notice of such event that the Australian Borrower or the applicable Subsidiary intends to reinvest, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds received therefrom on from an Event of Loss, the Net Cash Proceeds thereof in assets for use in the ordinary course of the Australian Borrower's or prior the applicable Subsidiary's business as then conducted, then so long as no Default or Event of Default then exists, Penford Holdings shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the date which is five Business Days extent such Net Cash Proceeds are actually reinvested in such assets with such 180-day period. Promptly after the end of such 180-day period, the Australian Borrower shall notify the Administrative Agent and the Australian Lender whether the Australian Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such assets, and to the extent such Net Cash Proceeds have not been so reinvested, Penford Holdings shall promptly prepay the Australian Term Loans (or all outstanding indebtedness, liabilities and obligations of the Australian Borrowers under the Australian Credit Agreements if an Event of Default exists) in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied on a ratable basis among the relevant outstanding Obligations based on the principal amounts thereof. If the Administrative Agent, the Australian Lender or the Required Lenders so request, all proceeds of such Disposition or Event of Loss shall be deposited with the Australian Lender or another bank or financial institution nominated by the Australian Lender and held by it in an account of the Australian Borrower subject to a charge of, the Australian Lender (the "Australian Collateral Account"). The Australian Borrower must take all action and execute all documents reasonably required by the Australian Lender for the purpose of taking and perfecting such security over the Australian Collateral Account, and grant to the Australian Lender the right to operate the Australian Collateral Account for the following purpose. So long as no Default or Event of Default exists, the Australian Lender is authorized to operate the Australian Collateral Account by withdrawing and disbursing amounts representing such proceeds from the Australian Collateral Account to or at the Australian Borrower's direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(iii) If after the Closing Date the U.S. Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the exercise of employee stock options and capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted hereby, the U.S. Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the U.S. Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the U.S. Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the U.S. Borrower shall prepay the U.S. Term Loans and, on behalf of Penford Holdings, the Australian Term Loan in an aggregate amount equal to 100% (or 50% if the U.S. Borrower's Total Senior Funded Debt/EBITDA Ratio was less than 2.0 to 1.0 for two consecutive quarters immediately preceding the date of such required payment) of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the relevant outstanding Obligations based on the principal amounts thereof. The U.S. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.11 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iiiiv) If after the Closing Date any Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 7.7(a)-(d) hereof, the U.S. Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the U.S. Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the U.S. Borrower shall prepay the U.S. Term Loans and, on behalf of Penford Holdings, the Australian Term Loan in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied on a ratable basis among the relevant outstanding Obligations based on the principal amounts thereof. Each of the Borrowers acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.7 hereof or any other terms of the Loan Documents.
(v) Within ten Business Days 90 days after financial statements have been or are required the close of each year, beginning August 31, 2004, the U.S. Borrower shall prepay the U.S. Term Loans and, on behalf of Penford Holdings, Australian Term Loan by an amount equal to 50% (the "Excess Cash Flow Percentage") of Excess Cash Flow of the U.S. Borrower and its Subsidiaries for the most recently completed fiscal year of the U.S. Borrower; provided, however, if the U.S. Borrower's Total Senior Funded Debt/EBITDA Ratio is less than 2.0 to 1.0 for two consecutive quarters, then the Excess Cash Flow Percentage shall be deemed to be delivered 0% until such time as the U.S. Borrower's Total Senior Funded Debt/EBITDA Ratio equals or exceeds 2.0 to 1.0. The amount of each such prepayment shall be applied on a ratable basis among the relevant outstanding Obligations based on the principal amounts thereof.
(vi) The U.S. Borrower shall, on each date the U.S. Revolving Credit Commitments are reduced pursuant to Section 6.01(a) and 2.3 hereof, prepay the related Compliance Certificate has been or is required U.S. Revolving Loans, U.S. Swing Loans, and, if necessary, prefund the U.S. L/C Obligations by the amount, if any, necessary to be delivered pursuant to Section 6.02(a), commencing with reduce the first full Fiscal Year ending after sum of the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (of U.S. Revolving Loans, U.S. Swing Loans, and U.S. L/C Obligations then outstanding to the “ECF Prepayment Amount”)amount to which the U.S. Revolving Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Penford Corp)
Mandatory. (i) (A) If (1x) the Company or any Restricted Company consummates Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.05(a), (b), (c), (d) (to the extent constituting a Prepayment Asset Sale Disposition by any Subsidiary to a Loan Party), (e), (g), (h) or (2k)) or (y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any the Company or such Restricted Company Subsidiary of Net Cash Asset Sale Proceeds in excess or Casualty Event Proceeds:
(A) for a period of 350 days after the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period date on which it receives such proceeds (such period, the “De Minimis Proceeds ThresholdUtilization Period”) in any Fiscal Year), the Borrower shall Company may, at the Company’s option, either (x) cause to be prepaid on or prior to the date which is ten Business Days after the date repaid any senior Indebtedness of the realization Company, including the Indebtedness arising under the Loans, the First Lien Notes and/or the Second Lien Indebtedness and/or (y) reinvest such Asset Sale Proceeds or receipt of such Net Cash Casualty Event Proceeds in assets useful for its business, in an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Asset Sale Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Casualty Event Proceeds realized or received with respect up to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option a maximum of the Borrower, and $75,000,000; provided that so long as no an Event of Default shall have occurred and be continuing, the Borrower may reinvest all Company shall not be permitted to make any such repayments, prepayments or any portion reinvestments (other than pursuant to a legally binding commitment that the Company entered into at a time when no Event of such Subject Proceeds in Default is continuing); and
(B) on the business first date following the end of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds Utilization Period, the Company shall apply any Asset Sale Proceeds or Casualty Event Proceeds not used in accordance with Section 2.04(b)(i)(A) (ysuch proceeds, the “Remaining Proceeds”) if to prepay or repay the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereofIndebtedness arising under the Loans and Cash Collateralize the L/C Obligations, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, and shall permanently reduce the Commitments by an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessRemaining Proceeds.
(ii) If the Borrowers or any Restricted Company incurs Subsidiary incur or issues issue any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)7.03, the Borrower Borrowers shall cause to be prepaid an aggregate principal amount of Term or repaid the Indebtedness arising under the the Loans and Cash Collateralize the L/C Obligations in an amount equal to 100% of all Net Cash Proceeds received therefrom and permanently reduce the Commitments by an amount equal to the 100% of all Net Cash Proceeds received, on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten If for any reason the aggregate Revolving Credit Exposures exceeds the aggregate Commitments then in effect for a period of three (3) consecutive Business Days Days, the Borrowers shall promptly prepay or cause to be promptly prepaid Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to such excess; provided that the Borrowers shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.04(b)(iii) unless after financial statements have been or are the prepayment in full of the Loans such aggregate Outstanding Amount exceeds the aggregate Commitments then in effect.
(iv) Each prepayment of Loans pursuant to this Section 2.04(b) shall be paid to the Lenders in accordance with their respective Pro Rata Shares subject to clause (v) of this Section 2.04(b).
(v) The Borrowers shall notify the Administrative Agent at the Administrative Agent’s Office in writing of any mandatory prepayment of Loans required to be delivered made pursuant to Section 6.01(aclauses (i) and (ii) of this Section 2.04(b) at least three (3) Business Days prior to the related Compliance Certificate has been 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 Borrowers’ prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Appropriate Lender may reject all or is a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Loans required to be delivered made pursuant to clauses (i) and (ii) of this Section 6.02(a)2.04(b) by providing written notice (each, commencing with a “Rejection Notice”) to the first full Fiscal Year ending Administrative Agent at the Administrative Agent’s Office and the Borrowers no later than 5:00 p.m. (New York time) one Business Day after the Closing Date, date of such Lender’s receipt of notice from the Borrower Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall cause specify the Subject principal amount of the mandatory repayment of Loans to be prepaid in an aggregate 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 repayment of Loans. Any Declined Proceeds shall be offered to the Appropriate Lenders not so declining such prepayment (with such non-declining Lenders having the “ECF Prepayment Amount”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 applied in prepayment of the First Lien Notes and the Second Lien Indebtedness in accordance with, and to the extent required by, the terms thereof and any surplus thereafter shall be retained by the Company.
(vi) Upon a Change of Control, the Borrowers shall immediately cause to be prepaid all outstanding Revolving Credit Loans and cause all L/C Obligations to be Cash Collateralized and the Commitments shall be immediately cancelled, provided that for the purpose of determining whether a Change of Control has occurred for the purpose of this paragraph, the Management Stockholders shall be deemed to beneficially own no more than 5% of the Equity Interests in the Company.
Appears in 1 contract
Mandatory. Subject, so long as the Takeback Indebtedness is outstanding (or to the extent it, or any successor facility, has been Refinanced), to the terms of the Intercreditor Agreement:
(i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance Commencing with the terms hereof)fiscal year ending December 31, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2019, within five (5) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after Borrower shall prepay an aggregate principal amount of Loans (such prepayments to be applied as set forth in clause (vii) below) equal to the Closing Datepositive amount (if any) rounded down to an integral of $100,000 of (A) 50% of Excess Cash Flow for the fiscal year covered by such financial statements minus (B) the aggregate principal amount of Term Loans prepaid pursuant to Section 2.04(a) during such period.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property pursuant to Section 7.05(g), which results in the realization by such Person of Net Cash Proceeds, the Borrower shall cause the Subject Loans to be prepaid in prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds no later than the second Business Day following the receipt thereof by such Person (such prepayments to be applied as set forth in clause (vii) (A) below); provided that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.04(b)(ii), at the election of the Borrower, and so long as no Default or 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 operating assets (including, without limitation, Monitoring Contracts) so long as within 180 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated; provided, further that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.04(b)(ii); provided, further, however, that such Net Cash Proceeds may not be so reinvested in excess of an aggregate amount equal to $50,000,000 in any fiscal year and $100,000,000 in the aggregate over the term of this Agreement; provided, further, however, that each such prepayment shall be accompanied by any applicable Prepayment Premium.
(iii) 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), 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 clause (vii)(A) below); provided that each such prepayment shall be accompanied by any applicable Prepayment Premium.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (ii) and (iii) of this Section 2.04(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom no later than the second Business Day following the receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (vii)(A) below); provided that, at the election of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; provided, further, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.04(b)(iv);
(v) If for any reason the Total Outstandings at any time exceeds the Line Cap at such time, the Borrower shall immediately prepay the Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) (and, as applicable, prepay the Term Loans) in an aggregate amount equal to such excess (such prepayments to be applied as set forth in clause (vii)(B) below).
(vi) To the extent the Term Loans are prepaid in full or Refinanced in their entirety, at the time of such prepayment or Refinancing, the Revolving Credit Commitments shall terminate in accordance with Section 2.05(b)(v), and the Borrower shall immediately prepay all outstanding Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) and such prepayments (A) shall be accompanied by any applicable Prepayment Premium and (B) shall be applied as set forth in clause (vii)(A) below (except that termination of commitments shall be pursuant to Section 2.05(b)(v)).
(A) Each prepayment of Loans pursuant to clauses (i), (ii), (iii), (iv), and (vi) of this Section 2.04(b) shall be applied, first, to the Term Facility until it is paid in full, second, ratably to the outstanding Revolving Credit Loans until the prepayment in full of such Revolving Credit Loans (but without a permanent reduction in the Revolving Credit Commitments) and, third, following the occurrence and during the continuation of an Event of Default, to Cash Collateralize the remaining L/C Obligations (provided that 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(B) Each prepayment of Loans pursuant to clause (v) of this Section 2.04(b) shall be applied, first, ratably to the outstanding Revolving Credit Loans until the prepayment in full of such Revolving Credit Loans (but without a permanent reduction in the Revolving Credit Commitments), second, to the extent of the excess described in such clause, to Cash Collateralize the outstanding L/C Obligations (provided that 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable) and, third, to the Term Facility.
(viii) Notwithstanding any of the other provisions of clauses (ii), (iii) or (iv) of this Section 2.04(b), so long as no Default 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 clauses (ii), (iii) or (iv) of this Section 2.04(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clauses (ii), (iii) or (iv) of this Section 2.04(b) to be applied to prepay Loans exceeds $3,000,000. 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 2.04(b). Upon the occurrence of a Default during any such deferral period, following delivery of a written request by the Administrative Agent, 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 2.04(b) (without giving effect to the first and second sentences of this clause (viii)) but which have not previously been so applied.
(ix) Each Lender may reject all of its pro rata share of any mandatory prepayment (such declined amounts, the “ECF Prepayment AmountDeclined Proceeds”) of Loans required to be made pursuant to this Section 2.04(b) by providing written notice (each, a “Rejection Notice”) to the 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. If a Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Loans. Any Declined Proceeds shall be used to prepay, on a pro rata basis, the Loans extended by Lenders who have not declined such mandatory prepayment and, to the extent there is any excess remaining after such application, retained by the Borrower and used to prepay the Takeback Indebtedness to the extent such declined mandatory prepayment hereunder requires a mandatory prepayment thereunder. Prepayments of the Revolving Credit Facility made pursuant to this Section 2.04(b), shall be applied to the Obligations as directed by the Borrower without a corresponding reduction in Revolving Credit Commitments.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Monitronics International Inc)
Mandatory. (i) (A) If (1) the Borrower or any of its Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Subsidiaries receives Net Cash Proceeds in excess of the greater $5,000,000 from any Asset Disposition or any Recovery Event (or series of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yearrelated Asset Dispositions or Recovery Events), the Borrower shall cause shall, subject to be prepaid on or prior clause (iii) below, prepay an aggregate principal amount equal to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans within one (1) Business Day following receipt thereof by such Person (such prepayments to be applied as set forth in clauses (iii) and (vii) below); provided, however, that with respect to any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received from an Asset Disposition or Recovery Event described in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A2.05(b)(i), at the option election of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or the applicable Restricted Subsidiary (or any combination of the foregoing) may reinvest all or any portion of such Subject Net Cash Proceeds if such reinvestment complies with the following requirements: (w) the Borrower shall deliver to the Administrative Agent on or prior to the date of its receipt of Net Cash Proceeds from such Disposition a certificate of a Responsible Officer to the effect that the Borrower and/or any such Restricted Subsidiary intends to reinvest all or any portion of such Net Cash Proceeds in the business of the Restricted Companies within accordance with this Section 2.05(b), (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to or the applicable Restricted Subsidiary (or any combination of the foregoing) shall reinvest such Subject Net Cash Proceeds to acquire operating assets (including the construction of any such assets and the Acquisition of all of the Equity Interests in one or more Persons owning or constructing any such assets) or to improve, enlarge, develop, re-construct or repair the affected asset, or any combination of the foregoing, in each case, so long as within such 15-month period following receipt thereof, 21 months following 365 days after the receipt of such Net Cash Proceeds, such acquisition, construction, improvement or other reinvestment action shall have been consummated; provided, however, that if in the case of any Asset Disposition of, or Recovery Event with respect to, any Collateral, in the event the Borrower or such Restricted Subsidiary chooses to reinvest such Net Cash Proceeds, the Borrower or such Restricted Subsidiary, as applicable, shall reinvest such Net Cash Proceeds in assets of the type described in clause (x) above (including the construction of such assets and the Acquisition of all of the Equity Interests in one or more Persons owning or constructing such assets) which will constitute Collateral and take all actions required by Section 6.13 with respect thereto (provided that any Equity Interests purchased with Net Cash Proceeds of Collateral pursuant to this Section 2.05(b) shall be issued by a Person organized under the laws of any political subdivision of the United States); and provided further, however, that any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(ii). Pending the application of any such Net Cash Proceeds, the Borrower may reduce outstanding Indebtedness under the Revolving Credit Loans or invest such Net Cash Proceeds in Cash Equivalents in which the Administrative Agent, for the benefit of the Secured Parties, has a perfected first priority security interest, subject only to Permitted Collateral Liens. The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.05. Notwithstanding anything contained herein to the contrary, so long as no Default under Section 8.01(a) or 8.01(f) or Event of Default shall have occurred and be continuing on the date of receipt of such proceeds, any Net Cash Proceeds received as a result of the Disposition of the Caesar, the Express or the Ingleside, Texas spoolbase located at 2000 Xxxxxx X, Xxxxxxxxx, Xxxxx (and ancillary equipment with respect thereto) shall not be required to be reinvested or applied as a prepayment as provided above, but may be used by the Loan Parties for general corporate purposes not in violation of any Law or breach of any Loan Document; if a Default under Section 8.01(a) or 8.01(f) or Event of Default shall have occurred and be continuing on the date of receipt of such proceeds, the Borrower must prepay an aggregate principal amount equal to 100% of such Net Cash Proceeds within one (1) Business Day of receipt thereof, to be applied pursuant to clauses (iii) and (vi) below. With respect to any Asset Disposition or Recovery Event which will result in Net Cash Proceeds in excess of $25,000,000, the Borrower shall notify the Administrative Agent thereof on or prior to the date of the applicable Asset Disposition or promptly following the date that the Borrower has actual knowledge that a Recovery Event has occurred.
(Bii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues excluding any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03(a) through (f) and (h) through (k)), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on the next Business Day following receipt thereof by the Borrower or prior any Restricted Subsidiary (such prepayments to be applied as set forth in clauses (iii) and (vi) below). The provisions of this Section do not constitute a consent to the date which is five Business Days after issuance or incurrence of any Indebtedness by the receipt Borrower or any of such Net Cash Proceedsits Restricted Subsidiaries not otherwise permitted hereunder.
(iii) Within ten Business Days after financial statements Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, ratably to the Term Facility and to the principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (vi) of this Section 2.05(b).
(iv) Notwithstanding any of the other provisions of clause (i), (ii) or (iii) 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 been occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (ii) or (iii) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $5,000,000, the Borrower may defer such prepayment until the first date thereafter on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (ii) or (iii) of this Section 2.05(b) to be applied to prepay Loans exceeds $5,000,000. 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 delivered pursuant applied to prepay Loans under this Section 6.01(a2.05(b) (without giving effect to the first and the related Compliance Certificate has second sentences of this clause (iv)) but which have not previously been or is so applied.
(v) If, on any date on which a prepayment would otherwise be required to be delivered made pursuant to clause (i) or (ii) of this Section 6.02(a2.05(b), commencing with the first full Fiscal Year ending after Borrower may, upon prior written notice to the Closing DateAdministrative Agent, elect to defer such all or any portion of such required prepayment until the end of an Interest Period provided that (A) all of the applicable Net Cash Proceeds not previously applied to prepay the Loans shall be deposited in a blocked deposit account at Bank of America on or before the Business Day following receipt of such proceeds and (B) such proceeds are applied to prepay the Loans at the end of such Interest Period. The Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. During the continuance of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Administrative Agent may, and at the direction of the Required Banks shall, prepay the Loans in the amount of all Net Cash Proceeds and proceeds thereof on deposit in, or credited to, such deposit account.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(vii) Prepayments of the “ECF Prepayment Amount”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, 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 may be retained by the Borrower for use in the ordinary course of its business. 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 Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Helix Energy Solutions Group Inc)
Mandatory. (i) (A) If (1x) the Borrower or any Restricted Company consummates a Prepayment Asset Sale of its Subsidiaries Disposes of any property or assets (other than any Disposition of any property or assets permitted by Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (r) and (t)) or (2y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company the Borrower or such Subsidiary of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause to be prepaid prepay on or prior to the date which is ten five (5) Business Days after the date of the realization or receipt of such Net Cash Proceeds Proceeds, subject to clause (b)(iii) of this Section 2.03, an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds realized or received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.03(b)(i)(A) ifwith respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention intent to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B2.03(b)(i)(B).
(AB) With respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale Disposition consummated in reliance on Section 7.05(i) or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A)Event, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Net Cash Proceeds in the assets useful for its business of the Restricted Companies within (x) 15 twelve (12) months following receipt of such Subject Net Cash Proceeds or (y) if the Borrower enters into a contract legally binding commitment to reinvest such Subject Net Cash Proceeds within such 15-month period twelve (12) months following receipt thereof, 21 within the later of (1) twelve (12) months following receipt thereof and (2) one hundred and eighty (180) days of the date of such Net Cash Proceedslegally binding commitment; provided, provided that if any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodelection, as applicableand subject to clause (iii) of this Section 2.03(b), an amount equal to any such Net Cash Proceeds shall be applied within ten five (5) Business Days after the Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be applied or cannot be so reinvested to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness2.03.
(ii) If the Borrower or any Restricted Company Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)7.03, the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been Notwithstanding any other provisions of this Section 2.03(b), (A) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.03(b)(i) (a “Foreign Disposition”) or the Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local law from being repatriated to the United States, the portion of such Net Cash Proceeds so affected will not be required to be delivered pursuant applied to Section 6.01(a) and repay Loans at the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid times provided in an aggregate principal amount (the “ECF Prepayment Amount”)this
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 500,000 individually or on a cumulative basis in any Fiscal Yearfiscal year of Credit Parties, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt Borrower Representative shall promptly notify the Agent of such Subject Proceeds proposed Disposition or Event of Loss (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed including the amount of the Subject estimated Net Cash Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms received by such Credit Party or such Subsidiary in respect thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten five (5) Business Days Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $500,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested or (y) committed to be invested or reinvested, in each case as described in Borrower Representative’s notice with such 180-day period. Promptly after the date end of such rejection) 180-day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to prepay the Subject Loans amounts outstanding under each of Term Loan A-1 and Term Loan A-2 in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement equal amounts until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Revolving Credit Commitments) abovethe Revolving Loans, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessSwing Loans, Reimbursement Obligations.
(ii) If after the Fourth Restatement Closing Date any Restricted Company incurs Credit Party or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 Subsidiary shall issue any new equity securities (other than Refinancing (a) equity securities issued in connection with the exercise of employee stock options, (b) equity securities issued in connection with the exercise of the Cure Right, (c) equity securities issued by a Subsidiary to another Credit Party, (d) equity securities sold to management and/or any employees of any Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness which shall be treated in accordance with (other than that permitted by Section 2.196.11 hereof), then in each such case Borrower Representative shall promptly notify the Borrower shall cause to be prepaid an aggregate principal amount Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received therefrom on by or prior to for the date which is account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days after Days) upon receipt by such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption Borrowers shall prepay the receipt Obligations in the amount of such Net Cash Proceeds.
. The amount of each such prepayment shall be applied first to the amounts outstanding under each of Term Loan A-1 and Term Loan A-2 in equal amounts until paid in full (iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and applied on a pro rata basis over the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(aremaining principal amortization payments thereof), commencing with and, then to (in the first full Fiscal Year ending after order determined by Agent but without a reduction in Revolving Credit Commitments) the Closing DateRevolving Loans, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)Swing
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) (A) If At any time in which any Incremental Term Facility Loan remains outstanding, if any Loan Party or any of its Subsidiaries (1other than Agway Subsidiaries, Inactive Subsidiaries or Excluded Subsidiaries) Disposes of any Restricted Company consummates a Prepayment Asset Sale property (other than any Disposition of any property permitted by Section 7.05(a), (b), (c), (d), (e) or (2h)) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (iii) and (v) below); provided, however, that (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 greater of $20,000,000 and 15.5% of Consolidated EBITDA as Exempt Proceeds, at the election of the last day of the most recently ended Test Period Borrower (the “De Minimis Proceeds Threshold”) in any Fiscal Year, as notified by the Borrower shall cause to be prepaid the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower such Loan Party or Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets so long as within 12 months after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); providedand provided further, however, that if (x) any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during within such 15-12 month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(i)(A), and (y) 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)(A).
(B) [Reserved].
(Cii) IfAt any time in which any Incremental Term Facility Loan remains outstanding, at upon any Extraordinary Receipt received by or paid to or for the time that account of any such prepayment would be required hereunder, the Borrower Loan Party or any of its Restricted Subsidiaries is required to repay (other than Agway Subsidiaries, Excluded Subsidiaries, or prepayment any First Lien Debt of the type described Inactive Subsidiaries), and not otherwise included in clause (bi) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.192.05(b), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount 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 (iii) and (v) below); provided, however, that (A) the first $50,000,000 of such Extraordinary Receipts received in any fiscal year (the “Exempt Receipts”) shall not be subject to the mandatory prepayment requirements set forth in this Section 2.05(b)(ii), and (B) with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments in excess of the Exempt Receipts, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is five Business Days of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 12 months after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and provided, further, however, that (A) any cash proceeds not so applied within such 12 month period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii), and (B) if a Default has occurred and is continuing at any time that a Loan Party or Subsidiary receives or is holding any Net Cash ProceedsProceeds which have not yet been applied to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received, such cash proceeds shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to the foregoing provisions of this Section 6.01(a2.05(b) shall be applied ratably to the Revolving Credit Facility (in the manner set forth in clause (v) of this Section 2.05(b)) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with Incremental Term Facilities unless expressly stated otherwise.
(iv) If for any reason the first full Fiscal Year ending after Total Revolving Credit Outstandings at any time exceed the Closing DateRevolving Credit Facility Amount at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(v) Except as otherwise provided in Section 2.17, 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) or (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 “ECF Prepayment Reduction Amount”)) may be retained by the Borrower for use in the ordinary course of its business. 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 Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(vi) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall not reduce the Revolving Credit Commitments.
Appears in 1 contract
Mandatory. (iIn addition to the principal payments required under Section 2.05(d) (A) If (1) any Restricted Company consummates above, Borrower shall pay to Administrative Agent, for the ratable benefit of Lenders, as a Prepayment Asset Sale or (2) any Casualty Event occurs, which in prepayment of outstanding principal on the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 Loans and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearNotes, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date lesser of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds all outstanding principal, interest, Fees, expenses, Additional Costs and other fees and costs on the Loan and Note, or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
one hundred percent (B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b100%) of the definition thereof following amounts:
(such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”i) (or offer to repurchase such Other Applicable Indebtedness), then In the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment event any of the Subject Loans and to the repurchase or repayment compressor units of Borrower which are part of the Other Applicable Indebtedness Inventory are sold, all net Sales Proceeds of any such compressor unit sale or sales in excess of $1,000,000 in the aggregate (determined on the basis including any prior sales permitted hereunder) during any consecutive twelve (12) month period (provided that sales in excess of an aggregate of $250,000 may not be made in any fiscal quarter) shall be applied in reduction of the aggregate outstanding principal amount balance of the Subject Loans and the Other Applicable Indebtedness (Loans; PROVIDED, HOWEVER, if a Borrowing Base deficiency pursuant to Section 3.02(b)(iv) hereof results from or accreted amount if is caused by any sale of a compressor unit, such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject net Sales Proceeds allocated of any compressor unit in Inventory as is necessary to satisfy the Other Applicable Indebtedness Section 3.02(b)(iv) deficiency shall not exceed be applied on the amount Loans prior to aggregation of the Subject remainder of such net Sales Proceeds that is required to be allocated to as a principal prepayment on the Other Applicable Indebtedness pursuant to Notes; and PROVIDED, HOWEVER, no such sale or sales in excess of $1,000,000 in the terms thereofaggregate during any consecutive twelve (12) month time period (or $250,000 in any one fiscal quarter) shall occur without the prior written consent of Administrative Agent. For purposes of this section, "Sales Proceeds" shall mean the net sales price of such compressor units (and after deduction of all direct costs of sale). Such sale(s) of compressor unit(s) in excess of $1,000,000 singularly or in the remaining amount, if any, aggregate (or $250,000 in any one fiscal quarter) shall effect an automatic reduction of the Subject Proceeds Borrowing Base and shall be allocated also permit Administrative Agent, at its option, to the Subject Loans effect a redetermination thereof in accordance with the terms provisions of Section 3.06 hereof), and excluding the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(iunit(s) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednesssold.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Mandatory. (i) (A) If (1) for any Restricted Company consummates a Prepayment Asset Sale or (2) reason the Total Outstandings at any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or time prior to the date which is ten Business Days after Revolver Maturity Date exceeds the date of Aggregate Commitments then in effect, the realization or receipt of such Net Cash Proceeds Borrowers shall immediately prepay Revolving Loans in an aggregate principal amount equal to such excess.
(ii) Upon the issuance and sale by the REIT of Initial Term any of its Equity Interests, the REIT shall prepay the Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all the Net Cash Proceeds received by the REIT in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)respect thereof; provided, however, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing, the Borrower REIT may reinvest use all or any a portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; providedProceeds to (A) pay operating expenses of the Loan Parties due and payable at the time of, that if any or anticipated to become due and payable within sixty (60) days of, such sale or issuance of its Equity Interests and/or (B) make dividends or other distributions in an amount not to exceed the amount required for the REIT to eliminate 110% of its taxable income at the time of such sale or issuance of its Equity Interests or otherwise required for the REIT to maintain its tax status as a real estate investment trust, in the case of each of clauses (A) and (B), so long as (x) the REIT delivers to the Administrative Agent a certificate signed by a Responsible Officer of the REIT certifying the amount of such Net Cash Proceeds permitted to be used for the purposes set forth in clauses (A) and (B), together with a detailed calculation thereof and (y) such Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during used for such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall purposes within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
sixty (B60) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender sale or holder issuance of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednessits Equity Interests.
(iiiii) If Upon receipt by any Restricted Company incurs or issues Loan Party of any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)Net Cash Proceeds from an Investment Asset Payment, the Borrower Borrowers shall cause to be prepaid an aggregate principal amount of Term prepay the Loans in an amount equal to 100% of all such Net Cash Proceeds received therefrom on Proceeds; provided, however, that so long as no Default or prior to Event of Default shall have occurred and be continuing, the date which is five Business Days after the receipt REIT may use all or a portion of such Net Cash Proceeds.
Proceeds to (iiiA) Within ten Business Days after financial statements have been pay operating expenses of the Loan Parties due and payable at the time of, or are anticipated to become due and payable within one hundred-twenty (120) days of, such Investment Asset Payment and/or (B) make dividends or other distributions in an amount not to exceed the amount required for the REIT to eliminate 110% of its taxable income at the time of such Investment Asset Payment or otherwise required for the REIT to maintain its tax status as a real estate investment trust, in the case of each of clauses (A) and (B), so long as (x) the REIT delivers to the Administrative Agent a certificate signed by a Responsible Officer of the REIT certifying the amount of such Net Cash Proceeds permitted to be delivered pursuant to Section 6.01(aused for the purposes set forth in clauses (A) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing (B) together with the first full Fiscal Year ending a detailed calculation thereof and (y) such Net Cash Proceeds are used for such purposes within one hundred-twenty (120) days after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)date of such Investment Asset Payment.
Appears in 1 contract
Mandatory. (i) (AIf the Company or any of its Subsidiaries Disposes of any property in accordance with and permitted by Section 7.02(f) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause prepay an aggregate principal amount of Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be 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, after the Amendment No. 3 Closing Date, the Borrower shall prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Company or prior such Subsidiary (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clause (b)(iv) below).
(iii) Within ten Business Days after financial statements have been Upon the sale or are required to be delivered pursuant to Section 6.01(a) and issuance by the related Compliance Certificate has been Company or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending any of its Subsidiaries of any of its Capital Stock after the Amendment No. 3 Closing DateDate (other than any sale or issuance of Capital Stock in connection with employee benefit arrangements), the Borrower shall cause the Subject Loans to be prepaid in prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Subsidiary (such prepayments to be applied as set forth in clause (b)(iv) below).
(iv) Each prepayment pursuant to the “ECF Prepayment Amount”foregoing provisions of this Section 2.03(b) shall be applied (x) in the case of an at-the-market (ATM) offering pursuant to clause (b)(iii) above, on the last day of each March, 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 Existing 2013 Revolving Credit Agreement, the Existing 2015 Revolving Credit Agreement and the 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 other holders of the NPA Notes) shall be used to prepay Loans hereunder.
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, then (x) the greater Borrower shall promptly notify the Administrative Agent of $20,000,000 and 15.5% such proposed Disposition or Event of Consolidated EBITDA as Loss (including the amount of the last day estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the most recently ended Test Period (the “De Minimis Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100.0% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $5,000,000 for the applicable fiscal year; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements (invest or reinvest, as applicable, within 365 days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received from an Event of Loss or, in excess each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the De Minimis Proceeds Threshold Borrower and its Subsidiaries (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(Aother than current assets), at the option of the Borrower, and then so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section 2.8(b)(i) in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested or contractually committed to be invested or reinvested (and actually reinvested within such extension period) as described in the Borrower’s notice within such 365-day period (or such extension period). Promptly after the end of such 365-day period (or such extension period), the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the relevant declined applicable fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to any the outstanding Term Lender or any holder Loans until paid in full (such prepayments being applied ratably to the remaining installments of Other Applicable Indebtednessprincipal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Restricted Company incurs Subsidiary shall incur or issues assume any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with that permitted by Section 2.19)7.1, the Borrower shall cause promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or assumption to be prepaid an aggregate principal amount received by or for the account of Term Loans the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.1 or any other terms of this Agreement.
(iii) Within ten Business Days fifteen (15) days after annual financial statements have been or are required to be have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a6.1(b), commencing beginning with the first full Fiscal Year fiscal year ending after the Closing DateDecember 31, 2022, the Borrower shall cause prepay the Subject Obligations by an amount equal to (1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of such payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Flow prepayment under this clause (iii) for the prior year) or after the end of such calendar year and prior to the prepayment date in this clause (iii), and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 3.00:1.00 but equal to or greater than 2.50:1.00, then such percentage shall be reduced to 25.0% and (B) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 2.50:1.00, then such percentage shall be reduced to 0.0%. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(iv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Tranche Rate Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in an aggregate principal amount (the “ECF Prepayment Amount”)case of any Term Loans or Tranche Rate Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 250,000 individually or on a cumulative basis in any Fiscal Yearfiscal year of Credit Parties, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt Borrower Representative shall promptly notify the Agent of such Subject Proceeds proposed Disposition or Event of Loss (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed including the amount of the Subject estimated Net Cash Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms received by such Credit Party or such Subsidiary in respect thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten five (5) Business Days Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $250,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested or (y) committed to be invested or reinvested, in each case as described in Borrower Representative’s notice with such 180-day period. Promptly after the date end of such rejection) 180-day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to prepay any outstanding Overadvances, then to the Subject outstanding Term Loans until paid in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Revolving Credit Commitments) abovethe Revolving Loans, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessSwing Loans, Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date any Restricted Company incurs Credit Party or issues any Subsidiary shall issue any new equity securities (other than (a) equity securities issued in connection with the exercise of employee stock options, (b) equity securities issued in connection with the exercise of the Cure Right, (c) equity securities issued by a Subsidiary to another Credit Party, (d) equity securities sold to management and/or any employees of any Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness not expressly (other than that permitted by Section 6.11 hereof), then in each such case Borrower Representative shall promptly notify the Agent of the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be incurred received by or issued for the account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days) upon receipt by such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption Borrowers shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) the Revolving Loans, Swing Loans and Reimbursement Obligations. Each Credit Party acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) No later than five (5) Business Days after the earlier of (a) receipt by Agent of the audited financial statements required by Section 6.1(c) hereof and (b) the due date of the delivery of the audited financial statements required by Section 6.1(c) hereof, beginning with the fiscal year ending June 30, 2017, Borrowers shall prepay the then-outstanding Loans by an amount equal to 50% of Excess Cash Flow of Credit Parties and their Subsidiaries for the most recently completed fiscal year of Credit Parties; provided, however, that if the Senior Leverage Ratio (determined as of the last day of any applicable fiscal year by reference to the financial statements delivered pursuant to Section 7.03 (other 6.1(c) for such fiscal year) is less than Refinancing Indebtedness which 1.00:1.00, Borrowers shall not be required to make a prepayment of Excess Cash Flow for such fiscal year. The amount of each such prepayment shall be treated applied first to the outstanding Term Loan until paid in accordance with full (applied on a pro rata basis over the remaining principal amortization payments thereof) and then to the Revolving Loans until paid in full, and, then to (in the order determined by Agent but without a reduction in Revolving Credit Commitments) any Overadvances, Swing Loans, Reimbursement Obligations, without any reduction in commitments. Any voluntary prepayments of principal of the Term Loans and, solely to the extent accompanied by a permanent reduction on commitments, the Revolving Loans, made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by Borrowers under this Section 2.192.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required to be made under this Section 2.8(b)(iii) in any year following the year immediately subsequent to the year such voluntary payments were made.
(iv) Borrowers shall, (A) on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay any Overadvances, the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the amount of the aggregate Revolving Credit Exposures of all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Revolving Credit Commitments have been so reduced and (B) on each date the aggregate amount of Revolving Credit Exposures of all Lenders then outstanding exceeds the lesser of (x) the Revolving Loan Limit as determined based on the most recent Compliance Certificate (plus any Overadvances pursuant to Section 2.11(b)) and (y) the total Revolving Credit Commitments, prepay the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, Cash Collateralize the L/C Obligations and repay any Overadvances then due and payable pursuant to Section 2.11(b), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to such excess.
(v) Borrowers shall pay to the Agent when and as received by Borrowers and as a mandatory prepayment of the Obligations, a sum equal to the Cure Amount determined in accordance with Credit Parties’ exercise of Cure Rights pursuant to and in accordance with Section 7.7 hereof. The prepayment shall be applied unless otherwise agreed by the Agent (x) 100% of all Net Cash Proceeds received therefrom on such Cure Amount first to any outstanding Overadvances, then to the Term Loan, ratably, each such ratable amount to be applied against the remaining installments of principal of the Term Loan in the inverse order of their maturities, and thereafter to repay outstanding principal of the Revolving Loans (without a concomitant reduction in the Revolving Credit Commitments), and (y) if no Overandvances are outstanding and if the Term Loan, and Revolving Loans are paid in full, thereafter against the other Obligations, in such order as the Agent determines.
(vi) Unless Borrower Representative otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, Swing Loans or prior Eurodollar Loans, accrued interest thereon to the date which is five Business Days after of prepayment together with any amounts due the receipt Lenders under Section 8.1. Each prefunding of such Net Cash ProceedsL/C Obligations shall be made in accordance with Section 7.4.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) (AIf the Borrower or any of its Subsidiaries Disposes of any property permitted by Section 7.05(g) If (1and 7.05(k) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater $1,000,000 in any fiscal year or realizes any Net Cash Proceeds in excess of $20,000,000 and 15.51,000,000 in any fiscal year in connection with a Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of Consolidated EBITDA such Net Cash Proceeds within one Business Day after receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii) below), unless no Event of Default has occurred and is continuing and such Person receives such Net Cash Proceeds during a fiscal quarter in which (i) sales from the last day of Kalydeco Product for the most recently ended Test Period fiscal quarter equal or exceed $100,000,000 and (the “De Minimis Proceeds Threshold”ii) in any Fiscal Year, the Borrower shall cause is in compliance with Section 7.12; provided, however, that, with respect to be prepaid any Net Cash Proceeds realized under a Disposition or Casualty Event described in this Section 2.03(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, Disposition or on or prior to such datethe date Net Cash Proceeds are realized in connection with a Casualty Event, as the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(Bcase may be).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets so long as within 365 days after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); providedand provided further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds not subject to such definitive agreement or so reinvested shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.03(b)(i).
(Bii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on within one Business Day after receipt thereof by the Borrower or prior such Subsidiary (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clause (iii) below).
(iii) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to this Section 6.01(a2.03(b) shall be (A) accompanied by prior written notice to the Administrative Agent of the same, provided by 11 a.m. one Business Day prior to the date of prepayment, and (B) applied to the related Compliance Certificate has been or is required principal repayment installments thereof on a pro-rata basis, and each such prepayment shall be applied to be delivered pursuant to Section 6.02(a), commencing the Loans of the Lenders in accordance with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)their respective Applicable Percentages.
Appears in 1 contract
Mandatory. Subject to the ABL Intercreditor Agreement: (i%4) (A%5) If if (1x) the Borrower or any of its Restricted Company consummates a Prepayment Subsidiaries consummate any Asset Sale or (2y) any Casualty Event Involuntary Disposition occurs, which in the aggregate results in the realization or receipt by any the Borrower or such Restricted Company Subsidiary of Net Cash Proceeds in excess of for all such Dispositions that have occurred subsequent to the greater immediately prior prepayment pursuant to this Section 2.03(b) (or, if there is no such prior prepayment, on or subsequent to the Closing Date) of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year40,000,000, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.03(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest or cause to be reinvested all or a portion of such Subject Net Cash Proceeds in accordance with Section 2.06(b)(i)(B2.03(b)(i)(B) (which election may only be made if no Event of Default has occurred and is then continuing).
. (A%5) With with respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A)Disposition, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest use all or any portion of such Subject Net Cash Proceeds in the to acquire, maintain, develop, construct, improve, upgrade or repair assets useful for its business (including for making Acquisitions) within (i) 365 days of the Restricted Companies within (x) 15 months following receipt of such Subject Net Cash Proceeds or (yii) if the Borrower enters into a contract legally binding commitment to reinvest use such Subject Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful for its business within 365 days after receipt of such 15-month period following receipt thereofNet Cash Proceeds, 21 months following within 540 days after receipt of such Net Cash Proceeds; provided, provided further that if any Net Cash Proceeds are not so used within the time period set forth above in this Section 2.03(b)(i)(B) or are no longer intended to be so reinvested used at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicableelection, an amount equal to any such Net Cash Proceeds shall within ten Business Days be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.062.03.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit Agreement (Polyone Corp)
Mandatory. (i) [Reserved].
(Aii) If any of the Borrowers or any Non-Borrower Subsidiary (1other than the Insurance Subsidiary) Disposes of any Restricted Company consummates a Prepayment Asset Sale or property (2) any Casualty Event occurs, which other than sales of inventory in the aggregate ordinary course of business, and other than any Excluded Asset Disposition and other than the Permitted Xxxxxxxxx Disposition) which, in any such case, results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower Borrowers shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all the Net Cash Proceeds received therefrom in excess of $30,000,000 in the De Minimis aggregate for the Net Cash Proceeds Threshold received from all such Dispositions during the immediately preceding twelve month period (collectivelycalculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, the “Subject Proceeds”as applicable); providedprovided that, that no such prepayment shall be required pursuant with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.06(b)(i)(A) if2.05(b)(ii), on or prior to such date, at the Borrower shall have given written notice election of the Borrowers (as notified by the Borrowers to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at no later than 45 days after the option end of the Borrowerfiscal quarter during which such Disposition occurred), and so long as no Event of Default shall have occurred and be continuing, the Borrower Borrowers may reinvest all or any portion of such Subject Net Cash Proceeds in the business operating assets of the Restricted Companies Borrowers so long as (A) within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following 330 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any such case, 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 the Net Cash Proceeds received therefrom in excess of $30,000,000 in the aggregate for the Net Cash Proceeds received from all such Recovery Events during the immediately preceding twelve month period (calculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable); providedprovided that, that if with respect to any Net Cash Proceeds are realized under a Recovery Event described in this Section 2.05(b)(iii), at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent no longer intended to later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred), and so long as no Event of Default shall have occurred and be so reinvested at continuing, the Borrowers may reinvest all or any time after delivery portion of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to in the prepayment replacement or restoration of any properties or assets in respect of which such Net Cash Proceeds were paid or operating assets of the Term Loans Borrowers so long as set forth in this Section 2.06(A) within 330 days after receipt of such Net Cash Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement (including, without limitation, a construction agreement) to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(Biv) [Reserved].
(C) If, at Upon the time that incurrence or issuance by the Borrowers of any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower Borrowers shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrowers (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable).
(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 to the principal repayment installments thereof as directed by the Borrowers and specified in the notice of prepayment, (provided that in the event that the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal of such Term Loans in reverse order of maturity) and, second, to the Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viii) of this Section 2.05(b). Subject to Section 2.18 and clause (vi) below, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(vi) The Borrowers shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans pursuant to Section 2.05(b)(ii) or (iii), at least five (5) Business Days prior to the date on which such payment is five Business Days after due. Such notice shall specify the receipt date of such Net Cash Proceedsprepayment and provide a reasonably detailed calculation of the amount of such prepayment. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall promptly (and, in any event, within one (1) Business Day) give notice to each Appropriate Lender of the contents of the Borrowers’ prepayment notice and of such Appropriate Lender’s Applicable Percentage or other applicable share provided for under this Agreement of the prepayment. Each Appropriate Lender may elect (in its sole discretion) to decline all (but not less than all) of its Applicable Percentage or other applicable share provided for under this Agreement of the prepayment (such amounts so declined, the “Declined Amounts”) of any mandatory prepayment by giving notice of such election in writing (each, a “Rejection Notice”) to the Administrative Agent by 12:00 p.m. (New York City time), on the date that is one (1) Business Day prior to the date that such prepayment is due. If a Lender fails to deliver a Rejection Notice 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 or other applicable share provided for under this Agreement of the total amount of such mandatory prepayment of Term Loans. The aggregate amount of the Declined Amounts shall be retained by the Borrowers and/or applied by the Borrowers in any manner not inconsistent with the terms of this Agreement.
(iiivii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and If for any reason the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with Total Revolving Credit Outstandings at any time exceed the first full Fiscal Year ending after the Closing DateRevolving Credit Facility at such time, the Borrower Borrowers shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(viii) Prepayments of the “ECF Prepayment Amount”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 without any reduction of the Revolving Credit Commitments, in each case.
Appears in 1 contract
Mandatory. (i) [Reserved].
(Aii) [Reserved].
(iii) If the Borrower or any of its Subsidiaries Disposes of any property (1other than any Disposition of any property permitted by Section 7.05(b), (c), (d), (e) any Restricted Company consummates a Prepayment Asset Sale or (2i)) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause to be prepaid on or prior shall, subject to the date which is ten Business Days after the date of the realization or receipt use of such Net Cash Proceeds to prepay loans pursuant to the terms of the Bank Loan Agreement, prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all such Net Cash Proceeds received promptly, but in excess any event within five Business Days after the later of (A) receipt thereof by such Person and (B) the expiration of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)30 day period provided below; provided, that no such prepayment shall be required pursuant however, that, following the Interim Loan Maturity Date only, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.06(b)(i)(A) if2.04(b)(iii), on or prior to such date, at the election of the Borrower shall have given written notice (as notified by the Borrower to the Administrative Agent of its intention to reinvest all or a portion not more than 30 days after the date of such Subject Proceeds in accordance with Section 2.06(b)(i)(BDisposition).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets so long as within 12 months after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash ProceedsProceeds such reinvestment shall have been completed; provided, further, however, that if with respect to Dispositions pursuant to Section 7.05(h), (x) the Borrower or such Subsidiary may only reinvest up to 50% of such Net Cash Proceeds which do not in the aggregate for all Dispositions under such Section exceed 5% of the Borrower’s Consolidated Total Assets as of the end of the immediately preceding fiscal quarter; and (y) the remaining 50% of such Net Cash Proceeds and any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any and 100% of such Net Cash Proceeds for Dispositions under such Section in excess of 5% of the Borrower’s Consolidated Total Assets as of the end of the immediately preceding fiscal quarter shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.04(b)(iii).
(Biv) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay of any Indebtedness (including, without limitation, any Permanent Securities) or prepayment any First Lien Debt equity or equity-linked securities of the type described in clause (b) of Borrower, the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchasedBorrower shall, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis subject to the prepayment use of the Subject Loans and such Net Cash Proceeds to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness prepay loans pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof)Bank Loan Agreement, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on promptly, but in any event within five Business Days, after receipt thereof by the Borrower or prior such Subsidiary.
(v) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (iii) or (iv) of this Section 2.04(b), the Borrower shall, subject to the date which is use of such Net Cash Proceeds to prepay loans pursuant to the terms of the Bank Loan Agreement, prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom promptly, but in any event within five Business Days after the later of (A) receipt thereof by such Person and (B) the expiration of the 30 day period provided below; provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent not more than 30 days after the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may apply within 12 months after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received so long as within 12 months after financial statements the receipt of such Net Cash Proceeds such replacement or repair shall have been or are required completed and provided, further, however, that any cash proceeds not so applied shall be immediately applied to be delivered pursuant to the prepayment of the Loans as set forth in this Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a2.04(b)(v), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”).
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary Disposes of any property or assets (other than in a Prepayment Asset Sale or (2) any Casualty Event occursDisposition of Intellectual Property not prohibited hereunder), which in the aggregate results in the realization or receipt by any the Borrower or such Restricted Company Subsidiary of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause the Loans to be prepaid prepaid, on or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.04(b)(i)(A) ifwith respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention intent to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B2.04(b)(i)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing).;
(AB) With respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale or Disposition (other than any Casualty Event required to be applied Disposition involving the sale of Equity Interests in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option any Subsidiary of the Borrower), and the Borrower may reinvest all or any portion of such Net Cash Proceeds in assets useful for its business (including, without limitation, Investments in its Subsidiaries) within (x) twelve (12) months following receipt of such Net Cash Proceeds or (y) if the Borrower enters into a legally binding commitment to reinvest such Net Cash Proceeds within twelve (12) months following receipt thereof, within one hundred eighty (180) days of the date of such legally binding commitment; provided that (i) so long as no an Event of Default shall have occurred and be continuing, the Borrower may reinvest all or shall not be permitted to make any portion of such Subject Proceeds in the business of the Restricted Companies within reinvestments (x) 15 months following receipt of such Subject Proceeds or (y) if other than pursuant to a legally binding commitment that the Borrower enters entered into at a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt time when no Event of such Net Cash Proceeds; provided, that Default was continuing) and (ii) if any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election or if any Net Cash Proceeds are not so reinvested during such 15-month period or 21-month period, as applicableby the expiration of the relevant time periods set forth above, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
2.04 within five (B5) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested or the expiration of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednesstime periods.
(ii) If the Borrower or any Restricted Company Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)7.03, the Borrower shall cause Loans to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and If for any reason the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with Total Outstandings at any time exceeds the first full Fiscal Year ending after the Closing DateAggregate Commitments then in effect, the Borrower shall promptly prepay, or cause to be promptly prepaid, Loans in an aggregate amount equal to such excess.
(iv) If any Subsidiary (other than any Restricted Subsidiary) of the Subject Borrower or the Restricted Subsidiaries makes any dividend or distribution (in each case, whether in cash or Cash Equivalents) with respect to any Equity Interests in such Subsidiary, or any other payment on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such Equity Interest, or on account of any return of capital to Borrower or any Restricted Subsidiary, or makes an advance or loan to the Borrower or any Restricted Subsidiary, then the Borrower shall cause Loans to be prepaid in an aggregate principal amount equal to 50% of such dividends, distributions and loans on or prior to the date which is five (5) Business Days after the “ECF Prepayment Amount”receipt thereof; provided that any proceeds from any Excluded Distributions shall not be required to be so repaid.
(v) Each prepayment of Loans pursuant to this Section 2.04(b) shall be paid to the Lenders in accordance with their respective Pro Rata Shares.
(vi) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to this Section 2.04 at least three (3) Business Days prior to the date of such prepayment (except in the case of prepayments to be made pursuant clause (iii) above, which shall be made promptly after, or concurrently with, the delivery of such notice). Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the amount of such prepayment. The Administrative Agent will promptly notify each Lender of the contents of the Borrower’s prepayment notice and of such Lender’s Pro Rata Share of the prepayment, which shall be pro rata across all Facilities.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as 250,000 individually or $500,000 on a cumulative basis in any fiscal year of the last day Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the most recently ended Test Period estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the “De Minimis Borrower or the Subsidiary of the Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements invest or reinvest, as applicable, within one hundred eighty (180) days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received in excess from an Event of the De Minimis Proceeds Threshold (collectivelyLoss, the “Subject Proceeds”); providedNet Cash Proceeds thereof in assets used or useful in the business, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and then so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice within such one hundred eighty (180) day period. Promptly after the end of such one hundred eighty (180) day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the relevant declined Borrower not so invested or reinvested. The amount of each such prepayment shall be applied first to any the outstanding Term Lender Loans until paid in full, and then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). If the Administrative Agent or any holder the Required Lenders so request, all proceeds of Other Applicable Indebtednesssuch Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Restatement Effective Date the Borrower or any Restricted Company incurs or issues Subsidiary shall issue any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 new Ownership Interests (other than Refinancing Excluded Equity Issuances) or incur or assume any Indebtedness which shall be treated in accordance with other than that permitted by Section 2.19)6.11, the Borrower shall cause to be prepaid an aggregate principal amount promptly notify the Administrative Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received therefrom on by or prior to for the date which is five Business Days after account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) Within ten If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Days after financial statements have been or are required Day of such notice) pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be delivered pursuant applied to Section 6.01(a) and the related Compliance Certificate has been or is required Revolving Loans until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be delivered pursuant held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to Section 6.02(a), commencing with the first full Fiscal Year ending Letters of Credit.
(iv) If after the Closing DateRestatement Effective Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall cause promptly notify the Subject Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) Within 120 days after the end of each fiscal year, the Borrower shall prepay the then-outstanding Loans by an amount equal to the Applicable ECF Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower, minus the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all voluntary prepayments of Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (1) and (2), (x) to the extent such prepayments are funded with internally generated cash and (y) excluding any such voluntary prepayments made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.8(b)(v) in an the prior fiscal year, and (3) all mandatory prepayments made pursuant to Section 2.8(b)(ix).
(vi) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(vii) Upon the “ECF Prepayment Amount”)occurrence of a Change of Control, concurrently with the closing of any such transaction, at the election of the Administrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Prime Rate Loans until payment in full thereof with any balance applied to Borrowings of SOFR Loans. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans or SOFR Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
(ix) Upon the Borrower or any Subsidiary’s receipt of Net Claim Proceeds from the Legacy Claims, the Borrower shall promptly prepay any then-outstanding Term Loan Obligations by an amount equal to the Net Claim Proceeds received from such Legacy Claim; provided, however, in no event will the prepayments under this Section 2.8(b)(ix) when combined with prepayments under Section 2.8(b)(v) exceed $6,000,000 in the aggregate during the term of this Agreement.
Appears in 1 contract
Mandatory. (i) Subject to clause (Aiv) If of this Section 2.03(b), if the Borrower or any of its Restricted Subsidiaries Disposes of any property (1other than any Disposition permitted under Section 7.05 (other than clause (d) any Restricted Company consummates a Prepayment Asset Sale or (2thereof)) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess or the Borrower or any of the greater its Restricted Subsidiaries receives any Net Cash Proceeds of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yearcasualty insurance or condemnation awards, the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to be prepaid 100% of such Net Cash Proceeds (or in the case of a Restricted Subsidiary that is not directly or indirectly wholly owned by the Borrower, in such lesser amount of Net Cash Proceeds as are actually received by the Borrower or a wholly owned Restricted Subsidiary of the Borrower), together with all accrued interest thereon and any additional amounts required pursuant to Section 3.03, such prepayment to occur (subject to the provisions below and to clause (iv) of this Section 2.03(b)) within 10 Business Days following receipt of such Net Cash Proceeds by such Person; provided, however, that, (x) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.03(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets, provided that, (i) within 180 days after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, the Borrower or Restricted Subsidiary, as applicable, has reinvested the Net Cash Proceeds into operating assets or (ii) where such Net Cash Proceeds have not been reinvested within 180 days after the receipt of such Net Cash Proceeds, the Borrower or Restricted Subsidiary shall have entered into a binding agreement for such reinvestment and such reinvestment shall have been consummated within 180 days after entering into such reinvestment agreement (as certified by the Borrower in writing to the Administrative Agent); provided, that if and (y) with respect to any Net Cash Proceeds are of casualty insurance or condemnation awards, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such Net Cash Proceeds of casualty insurance or condemnation awards), and so long as no longer intended Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may apply within 180 days after the receipt of such Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such Net Cash Proceeds were received; and provided that any Net Cash Proceeds referred to above in (x) or (y) to be so reinvested at shall be deposited in the Cash Collateral Account pending such reinvestment and, provided, further, that any time after delivery of a notice of reinvestment election amount referred to above in (x) or are (y) which is not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds within the time specified therein shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in clause (iv) of this Section 2.062.03(b).
(Bii) [Reserved].
Subject to clause (Civ) Ifof this Section 2.03(b), at upon the time that any such prepayment would be required hereunder, sale or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 its Equity Interests (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19Excluded Issuances and any sales or issuances of Equity Interests to another Loan Party), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(iii) Subject to clause (iv) of this Section 2.03(b), upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness not permitted under Section 7.02, the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or such Restricted Subsidiary.
(iv) Notwithstanding anything to the contrary herein, prepayments made and required to be made by the Borrower under this Section 2.03(b), together with repayments made and required to be made by the Borrower under Section 2.04, (a) prior to July 29, 2013 shall not exceed an aggregate amount of $155,000,000, (b) prior to July 29, 2014 shall not exceed an aggregate amount of $190,000,000, (c) prior to July 29, 2015 shall not exceed an aggregate amount of $225,000,000, and (d) prior to the date which is five Business Days after the receipt Maturity Date shall not exceed an aggregate amount of such Net Cash Proceeds$260,000,000.
(iiiv) Within ten Business Days after financial statements have been or are required Each prepayment of Term Loans made prior to be delivered the Maturity Date pursuant to this Section 6.01(a2.03(b) and shall be applied, first, in direct order of maturities, to any principal repayment installments of the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending Term Facility that are due within 12 months after the Closing Datedate of such prepayment, second, on a pro rata basis, to the Borrower other principal repayment installments of the Term Facility, and shall cause be paid to the Subject Loans to be prepaid Lenders under the Term Facility in an aggregate principal amount (the “ECF Prepayment Amount”)accordance with their respective Applicable Percentages.
Appears in 1 contract
Mandatory. There shall become due and payable and Borrower shall prepay the Loans without premium or penalty, in the following amounts and at the following times:
(i) (A) If (1) if for any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in reason the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess Outstanding Amount of the greater of $20,000,000 Revolving Credit Loans, Swing Line Loans and 15.5% of Consolidated EBITDA as of L/C Obligations exceed the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearRevolving Credit Facility at such time, the Borrower shall cause 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), as applicable, in an aggregate amount equal to be prepaid on or prior to such excess;
(ii) no later than five (5) Business Days following the date on which any Loan Party or any of its Subsidiaries (or Administrative Agent as loss payee or assignee) receives any Major Casualty Proceeds, an amount equal to one-hundred percent (100.0%) of such Major Casualty Proceeds; provided that so long as no Event of Default has occurred and is ten Business Days after continuing, the date recipient (other than Administrative Agent) of the realization or any Major Casualty Proceeds may reinvest such Major Casualty Proceeds within three hundred sixty five (365) days of receipt of such Net Cash Major Casualty Proceeds an aggregate principal amount (or within three hundred sixty-five (365) days of Initial Term Loans and any Additional Term Loans then such Major Casualty Proceeds becoming subject to ratable prepayment requirements a binding commitment to reinvest such Major Casualty Proceeds within one hundred eighty (180) days of receipt thereof), in assets of a kind then used or usable in the “Subject Loans”business of the Loan Parties; provided, however, that if the applicable Loan Party or Subsidiary does not intend to fully reinvest such Major Casualty Proceeds, or if the time period set forth in this sentence expires without such Loan Party or Subsidiary having reinvested such Major Casualty Proceeds, Borrowers shall within two (2) Business Day prepay the Loans in an amount equal to Required Net Proceed Percentage such Major Casualty Proceeds;
(iii) no later than five (5) Business Days following the date of all receipt by any Loan Party or any of its Subsidiaries of the proceeds from the issuance and sale of any Indebtedness (other than the proceeds of Indebtedness permitted pursuant to Section 7.02), an amount equal to one hundred percent (100%) of the Net Cash Proceeds received in excess of such issuance and sale; and
(iv) no later than five (5) Business Days following the date on which any Loan Party or any of its Subsidiaries receive the proceeds of any Disposition made pursuant to Sections 7.05(g) or 7.05(j) or a Disposition not otherwise permitted under this Agreement, an amount equal to one hundred percent (100%) of the De Minimis Net Cash Proceeds Threshold (collectively, the “Subject Proceeds”)of such Disposition; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.05(c)(iv) if, on or prior to such date, unless and until the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest aggregate Net Cash Proceeds received during any Fiscal Year from Dispositions exceeds $1,000,000 (in which case all or a portion Net Cash Proceeds in excess of such Subject Proceeds in accordance with amount shall be used to make prepayments pursuant to this Section 2.06(b)(i)(B2.05(c)(iv).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and ; provided further that so long as no Event of Default shall have has occurred and be is continuing, the Borrower recipient of such Net Cash Proceeds may reinvest all or any portion such Net Cash Proceeds within three hundred sixty five (365) days of receipt of such Subject Net Cash Proceeds (or within three hundred sixty-five (365) days of such Net Cash Proceeds becoming subject to a binding commitment to reinvest such Net Cash Proceeds within one hundred eighty (180) days of receipt thereof), in assets of a kind then used or usable in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) Loan Parties; provided, however, that if the Borrower enters into a contract applicable Loan Party or Subsidiary does not intend to fully reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that or if any Net Cash Proceeds are no longer intended to be so reinvested at any the time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) Ifsentence expires without such Loan Party or Subsidiary having reinvested such Net Cash Proceeds, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness Borrowers shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and within two (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to Day prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit Agreement (NOODLES & Co)
Mandatory. (i) (A) If (1) Upon any Restricted Company consummates a Prepayment Asset Sale Extraordinary Receipt received by or (2) any Casualty Event occurs, which in paid to or for the aggregate results in the realization or receipt by any Restricted Company account of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated any Excluded Joint Venture) in accordance with Section 2.19respect of its property or assets in excess of either (A) $2,500,000 for any one event or series of related events or (B) $5,000,000 in the aggregate during any fiscal year (without regard to the size of any one event or series of related events pursuant to (A) above), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds in excess thereof received therefrom within five Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the 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 is five Business Days the Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested within 12 months after the receipt of such Net Cash Proceeds (provided that if such reinvestment is not completed within 12 months after such date of receipt but the Borrower shall have entered into a binding commitment to so reinvest, the Borrower shall have an additional six months to complete such reinvestment or prepay Loans) and (C) within 10 days of the date the Borrower consummates such reinvestment or restoration, repair or 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 Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(i) and, as a result, no mandatory prepayments shall be required under this Section 2.05(b)(i); provided further that any Net Cash Proceeds not so 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.
(ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by Xxxxxxx 0.00(x), (x)(x), (x), (x), (x), (x), (x), (x) or (k)) which results in the realization by such Person of Net Cash Proceeds in excess of either (A) $2,500,000 for any Disposition or series of related Dispositions or (B) $5,000,000 in the aggregate during any fiscal year (without regard to the size of any one Disposition or series of related Dispositions pursuant to (A) above), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess thereof received therefrom within five Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in assets used or useful in the business, 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 the Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, the Net Cash Proceeds thereof may be reinvested within 12 months after the receipt of such Net Cash Proceeds (provided that if such reinvestment is not completed within 12 months after such date of receipt but the Borrower shall have entered into a binding commitment to so reinvest, the Borrower shall have an additional 6 months to complete such reinvestment or prepay Loans) and (C) within 10 days of the date the Borrower consummates such reinvestment, 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 Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as a result, no mandatory prepayments shall be required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not so 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.
(iii) Within ten Business Days Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity.
(iv) [Reserved].
(v) Notwithstanding the provisions of Section 2.05(b)(i) or (b)(ii), if any mandatory prepayments under Section 2.05(b)(i) or (b)(ii) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Rate Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, the Borrower may defer the making of such mandatory prepayment until the earlier of (A) the last day of such Interest Period and (B) the date thirty days after financial statements the date on which such mandatory prepayment would otherwise have been or are required to be delivered pursuant to Section 6.01(amade; provided that if any Base Rate Loans are then outstanding, such prepayment shall be made of such Base Rate Loans within the timeframes provided in Sections 2.05(b)(i) and the related Compliance Certificate has been or is required to (b)(ii) and any excess shall then be delivered pursuant to applied as provided in this Section 6.02(a2.05(b)(v), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”).
Appears in 1 contract
Samples: Credit Agreement (AdvanSix Inc.)
Mandatory. (i) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that, at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period) (the “Reinvestment End Date”), then such remaining portion shall be required to prepay the Term Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$45.0 million and 3.0% of Total Assets.
(ii) [Reserved].
(iii) If (A) prior to the SPV Structure Termination Date, any Loan Party or any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 4.09 of Annex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such Loan Party or member of the Restricted Group, as applicable, of such net cash proceeds and (other than B) on or after the SPV Structure Termination Date, any member of the Restricted Group Incurs or issues any Indebtedness after the Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Annex IV, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on a date that is five Business Days from receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Indebtedness which shall be treated Term Loans resulting in accordance with Section 2.19net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), the such Borrower shall 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 on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C 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 relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans, (B) 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 Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, 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 of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash Proceedsso 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by a Borrower) with respect to 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 member of the Restricted Group.
(iiiix) Within ten Upon becoming aware of a Change of Control:
(A) the Company or any Permitted Affiliate Parent 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 after financial statements have been or are required Days’ notice to be delivered pursuant to Section 6.01(a) the applicable Borrower, cancel each Facility, and the related Compliance Certificate has been Commitments thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
(x) In the event that (A) the Completion Date does not take place on or prior to the Acquisition Escrow Longstop Date, (B) the Acquisition Agreement is required terminated prior to be delivered pursuant to Section 6.02(athe Acquisition Escrow Longstop Date or (C) the Acquisition is consummated without the use of the Acquisition Escrow Proceeds Funded Amount (the date of any such event, the “Acquisition Escrow Termination Date”), commencing with the first full Fiscal Year ending after the Closing Date, the SPV Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount of the Initial Term Loans equal to the Acquisition Escrow Proceeds Funded Amount, together with accrued and unpaid interest (the “ECF Prepayment AmountSpecial Mandatory Repayment”). Notice of the Special Mandatory Repayment will be delivered by the SPV Borrower, no later than the second Business Day following the Acquisition Escrow Termination Date, to the Administrative Agent and the Acquisition Escrow Agent, and will provide that such Initial Term Loans shall be repaid on a date that is no later than the fifth Business Day after such notice is delivered in accordance with the terms of the Acquisition Escrow Agreement; provided that if the SPV Borrower shall fail to so deliver such notice of Special Mandatory Repayment within such time period, the Administrative Agent shall be entitled to deliver such notice on behalf (or in lieu) of the SPV Borrower to the Acquisition Escrow Agent.
(xi) In the event that the Completion Date occurs and the purchase price for the Acquisition set forth in the Acquisition Agreement shall be reduced in excess of 10% of the total purchase price contemplated by the Acquisition Agreement on the date hereof, the SPV Borrower shall cause to be prepaid an aggregate principal amount of the Initial Term Loans equal to the Acquisition Escrow Proceeds Funded Amount less the Acquisition Escrow Proceeds Funded Amount actually used to pay the purchase price for the Acquisition.
Appears in 1 contract
Mandatory. The Total Commitment shall be reduced (1) concurrently with any mandatory prepayment in accordance with ss.3.2, by the amount of such mandatory prepayment and (2) as provided in ss.15.4(a)(v). In addition, the Total Commitment shall be reduced from time to time prior to the Termination Declaration Date as follows:
(i) The Borrowers shall, on or before the end of the Specified Period referred to below, notify the Agents of the receipt of any Net Cash Proceeds of Collateral (other than Specified Resale Inventory) and the amount of any such Net Cash Proceeds invested by the Borrowers in new Inventory. Such notification shall contain such details as are reasonably requested by the Agents and shall be certified by a Senior Executive Officer of the Parent.
(ii) In the event that such Net Cash Proceeds exceed
(A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which $10,000,000 in the aggregate results in since the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of Closing Date, the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of Total Commitment shall be reduced, on the last day of the most recently ended Test Specified Period (in which the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause disposition giving rise to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal occurred, by the amount of Initial Term Loans and the excess, MINUS the amount of any Additional Term Loans then subject to ratable prepayment requirements (previous reductions in the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to Total Commitment made under this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
clause (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), clause (B) below at the option end of any earlier Specified Period; or
(B) $3,000,000 in the aggregate (but not greater than $10,000,000) since the Closing Date, the Total Commitment shall be reduced, on the last day of the Borrower, and so long as no Event of Default shall have occurred and be continuing, Specified Period in which the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract disposition giving rise to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) Ifoccurred, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed by the amount of the Subject excess MINUS the amount of any previous reductions in the Total Commitment under this clause (B) at the end of any earlier Specified Period; provided, however, if by the end of the Specified Period in which such asset disposition occurred, the Net Cash Proceeds that is required to of such disposition have been invested by the Borrowers in new Inventory, the Total Commitment shall be allocated to reduced only by the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of by which the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or of such asset disposition exceed the amount invested in new Inventory prior to end of the date which is five Business Days after the receipt of such Net Cash Proceedsapplicable Specified Period.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(aThe term "SPECIFIED PERIOD," as used in this ss.2.3(b), commencing with means (A) in the first full Fiscal Year ending case of a disposition giving rise to such Net Cash Proceeds occurring on or before the fifteenth day of a calendar month, the fifteenth day of the next succeeding calendar month, and (B) in the case of a disposition giving rise to such Net Cash Proceeds occurring after the Closing Datefifteenth day of a calendar month, the Borrower shall cause last day of the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)next succeeding calendar month.
Appears in 1 contract
Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any property (Aother than any Disposition of any property permitted by Sxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (o) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2p) and other than any Casualty Event occursevent giving rise to an Extraordinary Receipt, which in the aggregate shall be governed by clause (ii) of this Section 2.05(b)) which results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount promptly, but in any event within five Business Days, after the later of Initial Term Loans (A) receipt thereof by such Person and (B) the expiration of the 30-day period provided below (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that with respect to any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all such Net Cash Proceeds received in excess by or paid to or for the account of the De Minimis Proceeds Threshold (collectivelyBorrower or any of its Subsidiaries, at the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, election of the Borrower shall have given written notice (as notified by the Borrower to the Administrative Agent of its intention to reinvest all or a portion of such Subject not more than 30 days after receiving the Net Cash Proceeds in accordance with Section 2.06(b)(i)(Btherefrom).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets so long as within 12 months after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash ProceedsProceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any portion of such Net Cash Proceeds in operating assets so long as such binding commitment is entered into within 12 months after the receipt of such Net Cash Proceeds and within 18 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed, and, subject to the next succeeding proviso, no prepayment under this Section 2.05(b)(i) shall be required with respect to that portion of such Net Cash Proceeds that the Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period applied in accordance with clause (x) or 21-month period(y) of the immediately preceding proviso shall be promptly, as applicablebut in any event within five Business Days, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.2.05(b)(i). Table of Contents
(Bii) [Reserved].
(C) If, at Upon any Extraordinary Receipt received by or paid to or for the time that any such prepayment would be required hereunder, account of the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described Subsidiaries, and not otherwise included in clause (bi) or (iv) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.192.05(b), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on promptly, but in any event within five Business Days, after the later of (A) receipt thereof by such Person and (B) the expiration of the 30 day period provided below (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that (x) with respect to any Extraordinary Receipt received by or prior paid to or for the account of the Borrower or any of its Subsidiaries, at the election of the Borrower (as notified by the Borrower to the date which is five Business Days Administrative Agent not more than 30 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of such Extraordinary Receipt in operating assets so long as within 12 months after the receipt of such Net Cash ProceedsProceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any portion of such Extraordinary Receipt in operating assets so long as such binding commitment is entered into within 12 months after the receipt of such Net Cash Proceeds and within 18 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed, and, subject to the next succeeding proviso, no prepayment under this Section 2.05(b)(ii) shall be required with respect to that portion of such Net Cash Proceeds that the Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any event within five Business Days, applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii).
(iii) Within ten five Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), 6.02(b) (commencing with the first full Fiscal Year financial statements and certificate in respect of the fiscal year of the Borrower ending after the Closing DateSeptember 30, 2012), the Borrower shall cause the Subject Loans to be prepaid in prepay an aggregate principal amount of Term Loans (such prepayments to be applied as set forth in clause (v) below) equal to the “excess (if any) of (A) the Applicable ECF Prepayment Amount”Percentage of Excess Cash Flow, if any, for the fiscal year of the Borrower covered by such financial statements over (B) the sum of (1) the aggregate principal amount of Term Loans prepaid during such fiscal year pursuant to Section 2.05(a)(i) (and not previously applied by the Borrower in such fiscal year pursuant to the following clause (2) to reduce the prepayment required by this Section 2.05(b)(iii) for the preceding fiscal year) and (2) at the Borrower’s election, all or any amount of any prepayment of the Term Loans made pursuant to Section 2.05(a)(i) after the end of such fiscal year and on or prior to the date of such prepayment. Table of Contents
(iv) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of (x) Indebtedness pursuant to Section 7.02(n) or (y) any other Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02 (excluding Section 7.02(n))), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom promptly, but in any event within five Business Days, after receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (vi) below).
(v) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) (other than Section 2.05(b)(iv)(x)) shall be applied (i) ratably to each of the Term A Facility and the Term B Facility and (ii) within any such Term Facility, first, in direct order of maturity to the principal repayment installments thereof occurring during the 12 months following the date of such prepayment and, second, ratably to the remaining principal repayment installments of such Term Facility on a pro rata basis. Each prepayment of Term Loans pursuant to Section 2.05(b)(iv)(x) shall be applied (i) between the Term A Facility and the Term B Facility as the Borrower shall direct and (ii) within any such Term Facility, first, in direct order of maturity to the principal repayment installments thereof occurring during the 12 months following the date of such prepayment and, second, ratably to the remaining principal repayment installments of such Term Facility.
(vi) Notwithstanding any of the other provisions of clause (i), (ii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or any 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), (ii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Term Loans on such date is less than or equal to $1,000,000, the 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), (ii) or (iv) of this Section 2.05(b) to be applied to prepay Term 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 Term 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 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 previously been so applied.
(vii) 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, L/C Borrowings and Swing Line Loans and/or Cash Collateralize such 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 (vii) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and 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. 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 Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable. Table of Contents
Appears in 1 contract
Samples: Credit Agreement (Ashland Inc.)
Mandatory. (i) The Borrowers shall within two Business Days of receipt of the Net Cash Proceeds by either Borrower or any of their Subsidiaries from (A) If any Asset Sale, subject to the provisions set forth in Section 6.5, (1B) the incurrence or issuance by either Borrower or any Restricted Company consummates a Prepayment Asset Sale or (2) of their Subsidiaries of any Casualty Event occursIndebtedness, which in the aggregate results in the realization or receipt by excluding, however, any Restricted Company of Net Cash Proceeds in excess from any incurrence or issuance of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”Indebtedness pursuant to Section 6.2(a), Section 6.2(b), Section 6.2(e), Section 6.2(f) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of Section 6.2(i) but including such Net Cash Proceeds up to the amount by which the aggregate principal amount of Indebtedness outstanding at the time of such incurrence or issuance (giving pro forma effect to such incurrence or issuance) under all of the Existing Credit Agreements exceeds $9,000,000,000, and (C) the sale or issuance by either Borrower or any of its Subsidiaries of any Equity Interests (including, without limitation, receipt of any capital contribution) other than the sale or issuance of any Subsidiary's Equity Interests (including, without limitation, by way of any capital contribution to such Subsidiary) to Charter Holdings or to any Subsidiary of Charter Holdings, prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) Advances in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iiiii) Within Upon the occurrence of a Change of Control, the Borrowers shall give the Lenders written notice of such Change of Control within one Business Day of such occurrence and each Lender shall have the right to require the Borrowers to prepay in full the Advances owing to such Lender by giving the Borrowers written notice of its election to exercise such right within ten Business Days after financial statements have been following receipt of the notice of such Change of Control. If one or are required more Lenders shall elect to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Dateexercise such right, the Borrower Borrowers shall cause prepay in full the Subject Loans Advances owing to such Lenders on the fifteenth Business Day following the occurrence of such Change of Control.
(iii) All prepayments under this subsection (b) shall be prepaid in an aggregate made together with accrued interest to the date of such prepayment on the principal amount (the “ECF Prepayment Amount”)prepaid.
Appears in 1 contract
Samples: Senior Bridge Loan Agreement (Charter Communications Holdings Capital Corp)
Mandatory. (i) 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 Restricted Subsidiaries with respect to any sale, lease, transfer or other disposition of any Term Facility Collateral or any Extraordinary Receipt, prepay an aggregate principal amount of the Advances equal to such Net Cash Proceeds; provided, however, that (A) If the Borrower shall have no obligation to prepay any Advances under this Section 5.02(b)(i) so long as no Default under Section 6.01 (1a) any Restricted Company consummates a Prepayment Asset Sale or (2l) and no Event of Default shall be continuing and on a Pro Forma Basis (and giving effect to any Casualty Event occursrepayment or prepayment of Debt (including the Loans) in connection with the receipt of such proceeds) the Total Net Leverage Ratio shall not exceed 2.00:1.00, which in each case on the date of receipt of such Net Cash Proceeds; (B) in the aggregate results in the realization or receipt by any Restricted Company case of Net Cash Proceeds that are Extraordinary Receipts in excess 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 12 months after the receipt of such Extraordinary Receipts Proceeds (or, if a binding commitment to apply such proceeds is entered into within such 12-month period, 24 months) after the receipt of such Extraordinary Receipts Proceeds by a Loan Party or any of its Restricted Subsidiaries, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder; (C) 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 greater of $20,000,000 and 15.5% of Consolidated EBITDA Borrower (as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, notified by the Borrower shall cause to be prepaid the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectivelysale, the “Subject Proceeds”transfer or other disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets so long as within 12 months after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Net Cash Proceeds or (y) or, if the Borrower enters a binding commitment to apply such proceeds is entered into a contract to reinvest such Subject Proceeds within such 1512-month period following receipt thereofperiod, 21 months following 24 months) after the receipt of such Net Cash Proceeds, such reinvestment shall have been consummated; and provided, further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during by the conclusion of such 15-month reinvestment period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten on the following Business Days Day be applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(i); and (D) 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 Restricted 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.
(Bii) [Reserved].
(C) If, at Upon the time that incurrence or issuance by any such prepayment would be required hereunder, the Borrower Loan Party or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not than Debt expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.195.02(b)), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount Advances equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by such Loan Party or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsRestricted Subsidiary.
(iii) Within ten five Business Days after financial statements and the related certificate of a Responsible Officer of the Borrower have been or are required to be delivered pursuant to Section 6.01(a5.03(c) and for the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Dateended on December 31, 2013 and for each Fiscal Year thereafter, the Borrower shall cause (subject to the Subject Loans to be prepaid ECF Prepayment Conditions being satisfied in respect of such prepayment) prepay an aggregate principal amount of Advances equal to (A) the “Applicable ECF Prepayment Amount”)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 such prepayments of advances under the Revolving Facility are accompanied by a corresponding permanent commitment reduction of the Revolving Facility) made pursuant to Section 2.05(a) hereof or in accordance with the terms of the Revolving Facility Credit Agreement, as the case may be.
Appears in 1 contract
Samples: Senior Secured Term Facility Credit Agreement (Chemtura CORP)
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occursof Loss, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, then the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to promptly notify the Administrative Agent of its intention to reinvest all such Disposition or a portion Event of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
Loss (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at including the option amount of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any estimated Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, received by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described Subsidiary in clause (brespect thereof) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchasedand, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay the relevant Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (y) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate and (z) in the case of any Disposition or Event of Loss not covered by clause (y) above, so long as no Event of Default has occurred and is continuing, if the Borrower (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in assets used or useful in the business of the Borrower or a Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Subsidiary has committed to reinvest such Net Cash Proceeds in assets used or useful in the business of the Borrower or a Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 12-month or 18-month period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Subsidiary has reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans in accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 hereof (including Indebtedness issued or incurred under Sections 1.16, 1.18, 1.19 and 1.20), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans in accordance with this Section 1.9 until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of the Loan Documents.
(iii) Within ten Business Days 130 days after financial statements have been the end of each Fiscal Year of the Borrower (commencing with Fiscal Year 2015) the Borrower shall prepay the relevant Term Loans in accordance with this Section 1.9(b) until paid in full by an amount equal to the applicable ECF Prepayment Percentage of Excess Cash Flow of the Borrower and its Subsidiaries for the then most recently completed Fiscal Year of the Borrower less (a) at the option of the Borrower, the aggregate amount of any voluntary prepayments of any Term Loans made prior to the date of such prepayment (to the extent such prepayments are not financed with long-term indebtedness (other than Revolving Loans or other revolving indebtedness)) and (b) at the option of the Borrower, the aggregate amount of any voluntary prepayments of the Revolving Loans made prior to the date of such prepayment to the extent (x) such prepayments are accompanied by a concurrent permanent reduction of Revolving Credit Commitments in the amount of such prepayment and (y) such prepayments are not financed with long-term indebtedness (other than Revolving Loans or other revolving indebtedness); provided, that in the case of each of clauses (a) and (b), such amounts shall in no event be deducted from more than one Excess Cash Flow calculation; provided, that no prepayments shall be required pursuant to be delivered this Section 1.9(b)(iii) with respect to any Fiscal Year unless, and to the extent, the amount of such prepayment exceeds $5,000,000.
(iv) The Borrower shall, on each date any Revolving Credit Commitments are reduced pursuant to Section 6.01(a1.13 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, pre-fund the L/C Obligations (or make other arrangements reasonably satisfactory to the L/C Issuer) by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans, and U.S. Dollar Equivalent of all L/C Obligations then outstanding with respect to such Class to the amount to which such Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans of any type under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date of prepayment together with any amounts due to the Lenders under Section 1.12 hereof.
(vi) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the related Compliance Certificate has been or is required to U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be delivered pursuant to Section 6.02(a), commencing with in excess of the first full Fiscal Year ending after the Closing DateRevolving Credit Commitments of such Class in effect at such time, the Borrower shall cause immediately and without notice or demand pay over the Subject Loans amount of the excess to the Administrative Agent for the account of the Revolving Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be prepaid applied to the Revolving Loans and Swing Loans until paid in an aggregate principal amount (full with any remaining balance to be held by the “ECF Prepayment Amount”)Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) (A) If (1) for any Restricted Company consummates a Prepayment Asset Sale or (2) reason the Total Outstandings at any Casualty Event occurs, which in time exceed the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAggregate Commitments at such time, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term immediately prepay Revolving Credit Loans, Swing Line Loans and any Additional Term Loans then subject to ratable prepayment requirements L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the “Subject Loans”L/C Borrowings) in an aggregate amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B)excess.
(Aii) With respect to any Subject Proceeds realized Upon the occurrence or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.02), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans equal to 100% of all net cash proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary.
(iii) If the Borrower or any of its Subsidiaries receives any condemnation proceeds or insurance proceeds (other than business interruption insurance proceeds) on account of any Collateral Loss in excess of $2,000,000, then the Borrower shall, promptly upon receipt thereof, apply (or cause the applicable Subsidiary to apply) such proceeds first, as a mandatory prepayment of the then outstanding Revolving Credit Loans, second, if an Event of Default is continuing, to Cash Collateralize the then Outstanding Amount of all L/C Obligations in an amount equal to 100% of all Net Cash Proceeds received therefrom on the amount thereof, and third, any remaining amounts may be retained by the Borrower or prior to the date which applicable Subsidiary; provided, however, that if no Event of Default is five Business Days continuing, the Borrower or the applicable Subsidiary may, at its election, within 12 months after the receipt of such Net Cash Proceedsproceeds, replace or repair the equipment, fixed assets or real property in respect of which such proceeds were received; and provided, further, that any cash proceeds not so applied within such 12 month period shall be immediately applied to the prepayment of the Revolving Credit Loans (if any are then outstanding) as set forth in this Section 2.05(b)(iii).
(iiiiv) Within ten Business Days after financial statements have been or are Any mandatory prepayments hereunder shall be accompanied by all accrued interest on the amount prepaid together with any additional amounts required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)3.05.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occursThe Borrower shall, which in the aggregate results in the realization or receipt by any Restricted Company of Net on each Excess Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearFlow Payment Date, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) Advances in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess (A) prior to Phase II Completion, 90% of the De Minimis Proceeds Threshold Excess Cash Flow for such Excess Cash Flow Payment Date and (collectivelyB) following Phase II Completion, 100% of the “Subject Proceeds”); provided, that no Excess Cash Flow for such Excess Cash Flow Payment Date. Each such prepayment shall be required pursuant applied ratably to this the quarterly installments and final installment due under Section 2.06(b)(i)(A2.03.
(ii) ifThe Borrower shall, on within 30 days of (a) in the case of clauses (b) and (c) of the definition of “Net Cash Proceeds”, receipt of any Net Cash Proceeds by any Loan Party or prior to such dateany of its Subsidiaries and (b) in the case of clause (a) of the definition of “Net Cash Proceeds”, the expiration of the 6-month period for reinvestment in capital assets as set forth therein (provided that the Borrower shall have given written notice to the First Lien Administrative Agent of its intention to reinvest all or a portion such amounts within 30 days of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if amounts), in each case, prepay an aggregate principal amount of the Borrower enters into a contract Advances comprising the Borrowing in an amount equal to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt the amount of such Net Cash Proceeds; provided, that if any however, that, with respect to amounts described in clause (c) of the definition of “Net Cash Proceeds are no longer intended Proceeds”, the Borrower shall only be required to be so reinvested at any time after delivery prepay an aggregate principal amount of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, the Advances comprising the Borrowing in an amount equal to any 50% of the amount of such Net Cash Proceeds. Each such prepayment shall be applied ratably to the quarterly installments and final installment due under Section 2.03.
(iii) The Borrower shall prepay an aggregate principal amount of the Advances comprising the Borrowing in an amount equal to the amount of any Insurance Proceeds received by the Borrower or the First Lien Collateral Agent to the extent contemplated by Sections 7.11 and 7.12 of the Intercreditor Agreement. Each such prepayment shall be applied ratably to the quarterly installments and final installment due under Section 2.03.
(iv) Within ten (10) Business Days of Phase II Completion, the Borrower shall prepay an aggregate principal amount of the Advances comprising the Borrowing equal to the amount (if any) remaining in the Expansion Accounts and not otherwise required to fund Expansion Costs. Each such prepayment shall be applied ratably to the quarterly installments and final installment due under Section 2.03.
(v) Upon the occurrence of a Sponsor Prepayment Event, within ten (10) Business Days of receipt by the Borrower and the Sponsor of a Sponsor Prepayment Amount Notice, the Borrower shall prepay an aggregate principal amount of the Advances comprising the Borrowing equal to the amount of the Sponsor Prepayment Contribution required to be applied made by the Sponsor in connection with such Sponsor Prepayment Event pursuant to Section 2.1.1(c) of the Equity Support Agreement; provided that the application of any Sponsor Prepayment Contribution to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans Advances in accordance with the terms hereof), and the amount of the Intercreditor Agreement shall be deemed to satisfy the Borrower’s obligations under this Section 2.06(b)(v). Each such prepayment shall be applied ratably to the quarterly installments and final installment due under Section 2.03.
(vi) All prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the Subject Loans that would have otherwise been principal amount prepaid, together with any amounts owing pursuant to Section 8.04(c).
(vii) If at any time the Borrower is required to make a prepayment pursuant to this Section 2.06(b)(isubsection (b), each Lender, at its option, may elect not to accept such prepayment. The First Lien Administrative Agent shall give each Lender written notice of any prepayment required to be made by the Borrower pursuant to this subsection (b) (a “Prepayment Notice”) indicating the date on which such prepayment shall be reduced accordingly and made (2the “Prepayment Date”) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount (which date shall promptly (and in any event within be ten Business Days after the date of such rejectionPayment Notice) be and the amount of such prepayment (the “Prepayment Amount”). Any Lender declining such prepayment (a “Declining Lender”) shall give written notice to the First Lien Administrative Agent by 11:00 A.M. (New York City time) at least seven Business Days prior to the Prepayment Date (the “Declining Date”). Promptly following the Declining Date, the First Lien Administrative Agent shall notify (a “Initial Declined Amount Notice”) the Lenders other than the Declining Lenders (such Lenders being the “Accepting Lenders”) as to the amounts that would otherwise have been applied to prepay the Subject Loans Advances, as applicable, owing to the Declining Lenders (the “Initial Declined Amount”). The Accepting Lenders may elect to accept their ratable share of the Initial Declined Amount as an additional prepayment and shall notify the First Lien Administrative Agent in writing of such election by 11:00 A.M. (New York City time) at least five Business Days prior to the Prepayment Date. To the extent (A) any Lender fails to respond in writing to the Prepayment Notice at least seven Business Days prior to the Prepayment Date or (B) any Accepting Lender fails to respond in writing to the Initial Declined Amount Notice at least five Business Days prior to the Prepayment Date, then such Lender, with respect to such Prepayment Amount, or such Accepting Lender, with respect to such Initial Declined Amount, shall be deemed to have declined to accept its pro rata share of such Prepayment Amount or Initial Declined Amount, as the case may be.
(viii) If at any time the First Lien Administrative Agent shall have received funds as a result of the Sponsor’s making of a Sponsor Prepayment Contribution and any such funds have not been applied to prepayment of the Advances in accordance with Section 2.06(b)(v) as a result of the terms hereof and any other relevant Other Applicable Indebtedness Declining Lenders declining such prepayment in accordance with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.06(b)(vii) above, the Borrower First Lien Administrative Agent shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted promptly cause such funds to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior transferred to the date which is five Business Days after Account Bank for deposit into the receipt of such Net Cash ProceedsDollar Revenue Account.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: First Lien Credit Agreement (U S Energy Systems Inc)
Mandatory. The Borrower shall make mandatory prepayments as follows:
(i) If on the last day of an Excess Cash Flow Period a Rating Condition exists, within ten Business Days after financial statements for such Excess Cash Flow Period have been delivered pursuant to Section 6.01(a)(i) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to the product of the applicable Excess Cash Flow Prepayment Percentage times Excess Cash Flow for such Excess Cash Flow Period.
(Aii) If (1) the Borrower or any of its Restricted Company consummates a Prepayment Asset Sale or (2) Subsidiaries Disposes of any Casualty Event occursproperty, other than pursuant to any Excepted Disposition, which in the aggregate results in the realization by such Person of Net Cash Proceeds in an amount equal to more than $25,000,000 (or receipt $15,000,000 if a Default has occurred and is continuing) (whether in a single transaction or on an aggregate basis), but only if a Rating Condition exists on the date such monetary threshold is met, the Borrower shall make a mandatory prepayment by any Restricted Company prepaying an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds in excess of $15,000,000 within five Business Days after receipt thereof by such Person; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the greater of $20,000,000 and 15.5% of Consolidated EBITDA as election of the last day of the most recently ended Test Period Borrower (the “De Minimis Proceeds Threshold”) in any Fiscal Year, as notified by the Borrower shall cause to be prepaid the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in assets useful in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of and its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause so long as (bi) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days 12 months after the receipt of such Net Cash Proceeds, the purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent), or (ii) within 12 months after the receipt of such Net Cash Proceeds, the Borrower or such Restricted Subsidiary shall have entered into a definitive agreement to reinvest such Net Cash Proceeds in assets useful in the business of the Borrower and its Restricted Subsidiaries, and the purchase of such assets shall have been consummated within six months after the end of such 12 month period; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to the foregoing provisions of this Section 6.01(a2.05(b) shall be applied, without premium or penalty (except for amounts required under Section 3.05), first, ratably to the principal repayment installments with respect to the Term Facility under Section 2.07(a) and any principal repayment installments with respect to each Additional Term Loan Facility (unless the related Compliance Certificate has been amendment or is required supplement to be delivered pursuant to Section 6.02(athis Agreement executed in connection with such Additional Term Loan Facility otherwise provides), commencing in direct order of maturity and, second, to the Revolving Credit Facility in the manner set forth in clause (v) of this Section 2.05(b); provided that each Term Lender or Additional Term Facility Lender may reject its portion of the mandatory prepayment with respect to the first full Fiscal Year ending after Term Facility or Additional Term Facility, as applicable, in which event the Closing DateBorrower may retain the portion of the mandatory prepayment so rejected.
(iv) Whether or not a Rating Condition exists, if for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(v) Prepayments of the “ECF Prepayment Amount”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, if the Cash Collateralization of the Outstanding Amount of the L/C Obligations is then required, but has not been effected, hereunder, to such Cash Collateralization; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i) or (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, may be retained by the Borrower for use in the ordinary course of its business. 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Mandatory. (i) Within three (A3) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess Business Days of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or Company’s receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower Company shall cause prepay the Subject Loans to be prepaid in an aggregate amount equal to:
(A) 100% of any Asset Sale Proceeds; provided that notwithstanding the foregoing, it is understood and agreed that to the extent that (x) Net Cash Proceeds and Asset Sale Proceeds shall not include any amounts that are reinvested within nine months following the receipt thereof (other than Net Cash Proceeds and Asset Sale Proceeds received by the Company and its Subsidiaries due to a divestiture required by a Governmental Authority in connection with the consummation of the Acquisition) and (y) any such Asset Sale Proceeds are received and held by a foreign Subsidiary and repatriation thereof is prohibited or limited by applicable foreign law or other valid legal restriction, or the repatriation thereof would result in material adverse tax consequence to the Company and its Subsidiaries, any prepayment of the Loans as a result of the receipt of such Asset Sale Proceeds shall not be required if and so long as such prohibition or limitation exists or such material adverse tax consequences would continue to result;
(B) 100% of the Net Cash Proceeds actually received by the Company or any of its Subsidiaries from any Specified Debt Incurrence, other than any Qualified Bank Financing or any Specified Debt Incurrence that reduced the Commitments hereunder pursuant to Section 2.06(d); and
(C) 100% of the Net Cash Proceeds actually received by the Company from any Equity Issuance.
(ii) Each prepayment made pursuant to this Section 2.08(b) shall be made together with any interest accrued to the date of such prepayment on the principal amount amounts prepaid and, in the case of any prepayment of a Eurocurrency Rate Borrowing on a date other than the last day of an Interest Period or at its maturity, any additional amounts which the Company shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section 2.14.
(iii) The Company shall promptly (and no later than the “ECF Prepayment Amount”date of receipt thereof) notify the Administrative Agent of the receipt by the Company or any of its Subsidiaries’ receipt of Net Cash Proceeds subject to this Section 2.08(b), and such notice shall be accompanied by a reasonably detailed calculations of the applicable Net Cash Proceeds.
Appears in 1 contract
Samples: 364 Day Bridge Credit Agreement (Sherwin Williams Co)
Mandatory. (i) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that, at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period) (the “Reinvestment End Date”), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$45.0 million and 3.0% of Total Assets.
(ii) [Reserved].
(iii) If any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 4.09 of Annex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(other than iv) If any Borrower Incurs or issues any Refinancing Indebtedness which shall be treated Term Loans resulting in accordance with Section 2.19net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), the such Borrower shall 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 on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C 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 relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans, (B) 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 Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, 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 of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash Proceedsso 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by a Borrower) with respect to 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 member of the Restricted Group.
(iiiix) Within ten Upon becoming aware of a Change of Control:
(A) the Initial Borrower or any Permitted Affiliate Parent 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 after financial statements have been or are required Days’ notice to be delivered pursuant to Section 6.01(a) the applicable Borrower, cancel each Facility, and the related Compliance Certificate has been Commitments thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
(x) In the event that (A) the Completion Date does not take place on or prior to the Acquisition Escrow Longstop Date or (B) the Acquisition Agreement is required terminated prior to be delivered pursuant to Section 6.02(athe Acquisition Escrow Longstop Date (the date of any such event, the “Acquisition Termination Date”), commencing with the first full Fiscal Year ending after Initial Revolving Credit Commitments as of the Closing Date, date of this Agreement that are held by the Borrower Initial Lenders as of the date of this Agreement (or their permitted successors and assigns) shall cause the Subject Loans to be prepaid cancelled in an aggregate principal amount equal to 50% of the Initial Revolving Credit Commitments as of the date of this Agreement, pro rata among such Initial Lenders (or their permitted successors and assigns) (the “ECF Prepayment AmountMandatory Cancellation”) and, upon any Mandatory Cancellation, the Borrower shall be obligated to pay to the Administrative Agent, for the account of such Initial Lenders (or their permitted successors or assigns), and on a pro rata basis, (i) if the aggregate Outstanding Amount of Revolving Credit Loans exceeds the Revolving Credit Commitments (after giving effect to such cancellation), an aggregate principal amount of Revolving Credit Loans equal to such excess, together with accrued and unpaid interest thereon, and (ii) accrued and unpaid commitment fees under Section 2.09(a) in respect of the cancelled Revolving Credit Commitments. Notice of the Mandatory Cancellation will be delivered by the Initial Borrower, no later than the second Business Day following the Acquisition Termination Date, to the Administrative Agent, and will provide that such Initial Revolving Credit Commitments and Initial Revolving Credit Loans shall be cancelled and repaid, as applicable, on a date that is no later than the fifth Business Day after such notice is delivered by the Initial Borrower.
Appears in 1 contract
Mandatory. (i) [Reserved].
(Aii) If any of the Borrower or any Non-Borrower Subsidiary (1other than the Insurance Subsidiary) Disposes of any Restricted Company consummates a Prepayment Asset Sale or property (2) any Casualty Event occurs, which other than sales of inventory in the aggregate ordinary course of business, and other than any Excluded Asset Disposition and other than the Permitted Xxxxxxxxx Disposition) which, in any such case, results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of the Net Cash Proceeds received therefrom in excess of $10,000,000 in the greater of $20,000,000 and 15.5% of Consolidated EBITDA as aggregate for the Net Cash Proceeds received from all such Dispositions during the immediately preceding twelve month period (calculated after giving effect to the proviso below) no later than 45 days after the end of the last day fiscal quarter during which such Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable); provided 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 most recently ended Test Period Borrowers (as notified by the “De Minimis Proceeds Threshold”) in any Fiscal YearBorrowers to the Administrative Agent no later than 45 days after the end of the fiscal quarter during which such Disposition occurred), and so long as no Event Default shall have occurred and be continuing, the Borrower shall cause to be prepaid on Borrowers may reinvest all or prior to the date which is ten Business Days after the date of the realization or receipt any portion of such Net Cash Proceeds in operating assets of the Borrowers so long as (A) within 330 days after receipt of such Net Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any such case, results in the realization by such Person of Net Cash Proceeds, the Borrowers shall prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all the Net Cash Proceeds received therefrom in excess of $10,000,000 in the De Minimis aggregate for the Net Cash Proceeds Threshold received from all such Recovery Events during the immediately preceding twelve month period (collectivelycalculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, the “Subject Proceeds”as applicable); providedprovided that, that no such prepayment shall be required pursuant with respect to any Net Cash Proceeds realized under a Recovery Event described in this Section 2.06(b)(i)(A) if2.05(b)(iii), on or prior to such date, at the Borrower shall have given written notice election of the Borrowers (as notified by the Borrowers to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at no later than 45 days after the option end of the Borrowerfiscal quarter during which such Recovery Event occurred), and so long as no Event of Default shall have occurred and be continuing, the Borrower Borrowers may reinvest all or any portion of such Subject Net Cash Proceeds in the business replacement or restoration of any properties or assets in respect of which such Net Cash Proceeds were paid or operating assets of the Restricted Companies Borrowers so long as (A) within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following 330 days after receipt of such Net Cash Proceeds; provided, that such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if any Net Cash Proceeds are no longer intended a definitive agreement (including, without limitation, a construction agreement) to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during reinvest has been executed within such 15330-month period or 21-month day period, as applicable, an amount equal to any then such Net Cash Proceeds reinvestment shall have been consummated within ten Business Days be applied to 330 days after the prepayment of the Term Loans as set forth in this Section 2.06date such definitive agreement was executed.
(Biv) [Reserved].
(C) If, at Upon the time that incurrence or issuance by the Borrowers of any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower Borrowers shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrowers (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable).
(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 to the principal repayment installments thereof as directed by the Borrowers and specified in the notice of prepayment, (provided that in the event that the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal of such Term Loans in reverse order of maturity) and, second, to the Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viii) of this Section 2.05(b). Subject to Section 2.18 and clause (vi) below, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(vi) The Borrowers shall give notice to the Administrative Agent of any mandatory prepayment of the Term Loans pursuant to Section 2.05(b)(ii) or (iii), at least five (5) Business Days prior to the date on which such payment is five Business Days after due. Such notice shall specify the receipt date of such Net Cash Proceedsprepayment and provide a reasonably detailed calculation of the amount of such prepayment. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall promptly (and, in any event, within one (1) Business Day) give notice to each Appropriate Lender of the contents of the Borrowers’ prepayment notice and of such Appropriate Lender’s Applicable Percentage or other applicable share provided for under this Agreement of the prepayment. Each Appropriate Lender may elect (in its sole discretion) to decline all (but not less than all) of its Applicable Percentage or other applicable share provided for under this Agreement of the prepayment (such amounts so declined, the “Declined Amounts”) of any mandatory prepayment by giving notice of such election in writing (each, a “Rejection Notice”) to the Administrative Agent by 12:00 p.m. (New York City time), on the date that is one (1) Business Day prior to the date that such prepayment is due. If a Lender fails to deliver a Rejection Notice 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 or other applicable share provided for under this Agreement of the total amount of such mandatory prepayment of Term Loans. The aggregate amount of the Declined Amounts shall be retained by the Borrowers and/or applied by the Borrower in any manner not inconsistent with the terms of this Agreement.
(iiivii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and If for any reason the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with Total Revolving Credit Outstandings at any time exceed the first full Fiscal Year ending after the Closing DateRevolving Credit Facility at such time, the Borrower Borrowers shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(viii) Prepayments of the “ECF Prepayment Amount”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 without any reduction of the Revolving Credit Commitments, in each case.
Appears in 1 contract
Mandatory. (i) Within ninety (A90) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occursdays after the end of each Fiscal Year commencing with the Fiscal Year ending December 31, which in 2008, the Borrower shall prepay an aggregate results in the realization or receipt by any Restricted Company principal amount of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5Senior Debt equal to 50% of Consolidated EBITDA Excess Cash Flow for such Fiscal Year; provided, however with respect to Fiscal Year 2008, Excess Cash Flow shall be computed for the period commencing with the Commitment Effective Date through the last day of such Fiscal Year; and further provided, however, if the Total Leverage Ratio as of the last day of such Fiscal Year is less than 2.0 to 1.0, then the most recently ended Test Period (the “De Minimis Proceeds Threshold”Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(i) in any for such Fiscal Year.
(ii) If any Loan Party or any of its Subsidiaries disposes of any property in connection with an Asset Disposition which results in the realization by such Person of Net Cash Proceeds, the Borrower shall cause prepay an aggregate principal amount of Senior Debt equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be prepaid applied as set forth in clauses (vii) and (ix) below); provided, however, that, with respect to any Net Cash Proceeds realized under an Asset Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Asset Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower such Loan Party or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets performing the same or a similar function or otherwise used in the business of such Loan Party or such Subsidiary so long as within 180 days after the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); providedand provided further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period (or 21-month period, as applicable, an amount equal subject to any such Net Cash Proceeds a definitive agreement to be reinvested) shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(ii) immediately upon the earlier of the occurrence of a Default or the expiration of such 180 day period.
(Biii) [Reserved].
(C) If, at Upon the time that sale or issuance by any such prepayment would be required hereunder, the Borrower Loan Party or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 its Capital Securities (other than Refinancing Indebtedness which shall be treated any sales or issuances of Capital Securities to another Loan Party or in accordance connection with Section 2.19a Permitted Acquisition) or the exercise by any Person of any convertible Capital Securities issued by a Loan Party (other than the Warrants), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount Senior Debt 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 (vii) and (ix) below).
(iv) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt permitted under Sections 7.01 (a) — (i) and (k)), the Borrower shall prepay an aggregate principal amount of Senior Debt 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 (vii) and (ix) below).
(v) Immediately upon the receipt by any Loan Party or any Subsidiary of Net Cash Proceeds from the exercise of any Warrants, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to (A) 100% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is equal to or greater than 2.50:1.0, (B) 75% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.50:1.0 but equal to or greater than 2.0:1.0 and (C) 50% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.0:1.0 but equal to or greater than 1.50:1.0; provided, however, that if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 1.50:1.0, then the Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(v).
(vi) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (ii), (iii), (iv) or (v) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Senior Debt 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 (vii) and (ix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is five Business Days of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 180 days after the receipt of such Net Cash Proceedscash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; 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)(v).
(iiivii) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Senior Debt pursuant to the foregoing provisions of this Section 6.01(a2.05(b) and shall be applied to the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a)outstanding Loans; provided, commencing with the first full Fiscal Year ending after the Closing Datehowever, the Borrower shall cause offer to prepay a Ratable Portion of the Subject Private Placement Notes with any such prepayment amount pursuant to the terms of the Private Placement Note Purchase Agreement and, to the extent accepted by the Private Placement Noteholders, prepay the applicable Private Placement Notes so long as at least a Ratable Portion of the outstanding Loans is prepaid contemporaneously with such prepayment of Private Placement Notes; in each case accompanied by a certificate of a Responsible Officer of the Borrower demonstrating the calculation of such prepayment amount and applied, first, to be prepaid the Term A Loan and the Term B Loan (ratably to the remaining principal amortization payments) and, second, to the Revolving Credit Facility in the manner set forth in clause (ix) of this Section 2.05(b).
(viii) 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 than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(ix) 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), (iv) or (v) 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 “ECF Prepayment Reduction Amount”) may be retained by the 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)(iv). 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrowers or any Restricted Company consummates of their respective Subsidiaries shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of $10,000,000 individually or on a cumulative basis in any fiscal year of the greater Borrowers, then (x) the Borrowing Agent shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by such Borrowers or such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrowers shall prepay the Obligations in an aggregate amount equal to one hundred percent (100%) of the amount of all such Net Cash Proceeds in excess of $20,000,000 10,000,000; provided, that in the case of each Disposition and 15.5% Event of Consolidated EBITDA Loss, if the Borrowing Agent states in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within twelve (12) months of the last day applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or a restoration or repair of the most recently ended Test Period Property subject to such Event of Loss, then the applicable Borrower or the applicable Subsidiary shall deliver the Net Cash Proceeds to the Administrative Agent to be applied to the Revolving Loan and the Administrative Agent may, in its sole discretion, establish a reserve against available funds for borrowing purposes under the Revolving Loan for such amount, until such time as such Net Cash Proceeds have been reborrowed to effect such restoration or repair or applied to other Obligations as set forth herein. If the applicable Borrower or the applicable Subsidiary has delivered such Net Cash Proceeds to the Administrative Agent, such Borrower or Subsidiary may, so long as no Default or Event of Default then exists, reborrow such Net Cash Proceeds for investment or reinvestment so long as such Net Cash Proceeds are actually invested or reinvested as described in the Borrowing Agent’s notice within such twelve (12) month period and otherwise in accordance with the “De Minimis Proceeds Threshold”provisions of the applicable Loan Documents (including, without limitation, any requirements specifically set forth in the Mortgages). Promptly after the end of such twelve (12) in any Fiscal Yearmonth period, the Borrowing Agent shall notify the Administrative Agent whether such Borrower shall cause or such Subsidiary intends to invest or reinvest such Net Cash Proceeds as described in the Borrowing Agent’s notice, and to the extent such Net Cash Proceeds are not to be prepaid on so invested or prior to reinvested, the date which is ten Business Days after Administrative Agent shall release any applicable reserve in the date of the realization or receipt amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to the Revolving Loans until paid in full and then to the Swing Loans. To the extent that the Administrative Agent directly receives any Net Cash Proceeds resulting from an Event of Loss, the Administrative Agent shall apply the amount of such Net Cash Proceeds to the Obligations as outlined in this Section 2.8(b).
(ii) On any Revaluation Date, if the aggregate principal amount of Initial Term outstanding Multicurrency Revolving Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in shall exceed an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess 105% of the De Minimis Proceeds Threshold (collectivelyMulticurrency Revolving Commitments, the “Subject Proceeds”); provided, that no Borrowers shall immediately repay such prepayment shall be required pursuant Multicurrency Revolving Loans in an amount sufficient to this Section 2.06(b)(i)(A) if, on or prior to reduce such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion aggregate principal amount as of such Subject Proceeds date of payment to an amount not to exceed 100% of the Multicurrency Revolving Commitments (such repayment to be applied as set forth in accordance with Section 2.06(b)(i)(B2.9).
(Aiii) With respect to any Subject Proceeds realized [Intentionally Omitted]
(iv) The Borrowers shall, on each date the Domestic Revolving Credit Commitments or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodMulticurrency Revolving Commitments, as applicable, an amount equal are reduced pursuant to any such Net Cash Proceeds shall within ten Business Days be applied to Section 2.10, prepay the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Revolving Loans and to Swing Loans and, if necessary, prefund the repurchase or repayment of L/C Obligations by the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, necessary to reduce the sum of the Subject Proceeds shall be allocated aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the Subject amount to which the Domestic Revolving Credit Commitments or the Multicurrency Revolving Commitment, as applicable, have been so reduced.
(v) Unless the Borrowers otherwise direct, prepayments of Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to under this Section 2.06(b)(i2.8(b) shall be reduced accordingly and (2applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) to shall be made by the extent the holders payment of the Other Applicable Indebtedness decline principal amount to have such Indebtedness be prepaid and, in the case of any Swing Loans or repurchasedEurocurrency Loans, the declined amount shall promptly (and in any event within ten Business Days after accrued interest thereon to the date of such rejection) be applied to prepay prepayment together with any amounts due the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder Lenders under Section 8.1. Each prefunding of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which L/C Obligations shall be treated made in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds7.4.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on On or prior to the date which is ten fifth Business Days after Day following the date receipt by any Loan Party of net cash proceeds from the realization sale or receipt disposition of such Net Cash Proceeds an aggregate principal amount any assets (including by way of Initial Term casualty or condemnation), other than those made in the ordinary course of business, the Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in shall be repaid by an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess such net cash proceeds, together with any accrued interest on the portion of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)Loans repaid; provided, however, that no such prepayment repayment shall be required if (a) the aggregate of all such net cash proceeds in any fiscal year is less than $2,500,000, or (b) if Borrower notifies Agent on or before the date such repayment would otherwise be required under this Section 2.04(b) that Borrower intends to use any or all of such net cash proceeds to invest in assets necessary or useful in the business of Borrower within 360 days of the date of such sale or other disposition, in which case, the repayment of the Loans which is otherwise required under this Section 2.04(b)(i) up to the amount of the net cash proceeds to be reinvested pursuant to this Section 2.06(b)(i)(A2.04(b)(i) ifneed not be made, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest but if all or a portion part of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds net cash proceeds are not used within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month 360 day period, as applicable, then the Loans shall be repaid by an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds net cash proceeds calculated based on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall such net cash proceeds not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required invested pursuant to this Section 2.06(b)(i) on the day immediately following such 360 day period following such sale or other disposition.
(ii) On the first Business Day following the receipt of any net cash proceeds from the issuance by Parent or any of its Subsidiaries of Indebtedness (other than issuances of Subordinated Debt, unless otherwise required herein), the Loans shall be reduced accordingly repaid by the amount of such net cash proceeds (including, without duplication, any amounts received by Borrower from or on behalf of the Parent as equity contributions with the proceeds of such issuance), together with accrued interest on the portion of the Loans repaid.
(iii) Each prepayment of Loans pursuant to the foregoing provisions of Section 2.04(b)(i) and (2ii) shall be applied, first, to the extent the holders principal repayment installments of the Other Applicable Indebtedness decline Delayed Draw Term Loans on a pro-rata basis and, second, to have the Revolving Facility in the manner set forth in clause iv of Section 2.04(b). Subject to Section 2.14, such Indebtedness prepaid or repurchased, prepayments shall be paid to the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans Lenders in accordance with their respective Applicable Percentages in respect of the terms hereof relevant Facilities.
(iv) If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, Borrower shall immediately prepay Revolving Loans and any other relevant Other Applicable Indebtedness L/C Borrowings (together with a corresponding requirement on a pro rata basis (determined all accrued but unpaid interest thereon) and/or Cash Collateralize the L/C Obligations in a manner consistent with an aggregate amount equal to such excess; provided, however, that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer Cash Collateralize the amount L/C Obligations pursuant to this Section 2.04(b)(iv) unless, after the prepayment of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)Revolving Loans, the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to Total Revolving Outstandings exceed the date which is five Business Days after the receipt of Revolving Facility at such Net Cash Proceedstime.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit Agreement (Cbeyond, Inc.)
Mandatory. (i) (A) If (1) The Borrower shall from time to time prepay the Revolving Loans to the extent necessary so that the Total Utilization of Commitments shall not at any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurstime exceed the Commitments then in effect; provided that, which to the extent such excess amount is greater than the aggregate principal amount of Revolving Loans outstanding immediately prior to the application of such prepayment, the amount so prepaid shall be retained by the Administrative Agent and held in the Cash Collateral Account as cover for Letter of Credit Usage, as more particularly described in Section 2.04(l), and thereupon such cash shall be deemed to reduce the aggregate results Letter of Credit Usage by an equivalent amount.
(ii) To the extent the Financial Covenants set forth in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA Section 8.01(b) and/or Section 8.01(c) are not satisfied as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) any Measurement Date as set forth in any Fiscal YearCompliance Certificate delivered in accordance with Section 6.02(a), the Borrower shall cause to be prepaid on or prior to prepay the date which is Revolving Loans in accordance with clause (iii) below within ten (10) Business Days after of the date of the realization or receipt delivery of such Net Cash Proceeds an aggregate Compliance Certificate to the extent necessary such that the Financial Covenants set forth in Section 8.01(b) and/or Section 8.01(c) would, if recalculated to give Pro Forma Effect to such repayment, be satisfied as of such Measurement Date (or, if less, the remaining outstanding principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess balance of the De Minimis Proceeds Threshold (collectivelyFacility) and, the “Subject Proceeds”); provided, that no as long as such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to payment is made as of such date, the no Default or Event of Default shall occur in respect of such breach.
(iii) The Borrower shall have given written give notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option mandatory prepayment of the BorrowerLoans pursuant to Section 2.07(b)(i) or Section 2.07(b)(ii) by 11:00 a.m. at least three Business Days prior to the date on which such payment is due. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment on or before the date specified in Section 2.07(b)(i) or Section 2.07(b)(ii) (a “Prepayment Date”). Once given, and so long as no Event of Default such notice shall have occurred and be continuing, irrevocable (provided that the Borrower may reinvest rescind any notice of prepayment if such prepayment would have resulted from a refinancing of all or any portion of the Facility or been made in connection with a Disposition, which refinancing or Disposition shall not be consummated or shall otherwise be delayed) and all amounts subject to such Subject Proceeds notice shall be due and payable on the Prepayment Date (except as otherwise provided in the business last sentence of this Section 2.07(b)(iii)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the Restricted Companies within (x) 15 months following receipt prepayment, the Prepayment Date and of such Subject Proceeds or Xxxxxx’s Pro Rata Share of the prepayment. Each Lender may elect (yin its sole discretion) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt decline all (but not less than all) of its Pro Rata Share of any mandatory prepayment by giving notice of such Net Cash Proceeds; providedelection in writing to the Administrative Agent by 11:00 a.m., on the date that if any Net Cash Proceeds are no longer intended is one Business Day prior to be so reinvested at any time after delivery of such prepayment. If a Lender fails to deliver a notice of reinvestment election or are not so reinvested during declining receipt of its Pro Rata Share of such 15-month period or 21-month periodmandatory prepayment to the Administrative Agent within the time frame specified above, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days failure will be applied deemed to constitute an acceptance of such Xxxxxx’s Pro Rata Share of the total amount of such mandatory prepayment of Loans. Upon receipt by the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) IfAdministrative Agent of such notice, at the time that Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any such prepayment would Lender shall be required hereunder, retained by the Borrower and the Restricted Subsidiaries and/or applied by the Borrower or any of its the Restricted Subsidiaries is required to repay or prepayment in any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall manner not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance inconsistent with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessAgreement.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit Agreement (Hornbeck Offshore Services Inc /La)
Mandatory. (i) Within ninety (A90) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occursdays after the end of each Fiscal Year commencing with the Fiscal Year ending December 31, which in 2008, the Borrower shall prepay an aggregate results in the realization or receipt by any Restricted Company principal amount of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5Senior Debt equal to 50% of Consolidated EBITDA Excess Cash Flow for such Fiscal Year; provided, however with respect to Fiscal Year 2008, Excess Cash Flow shall be computed for the period commencing with the Commitment Effective Date through the last day of such Fiscal Year; and further provided, however, if the Total Leverage Ratio as of the last day of such Fiscal Year is less than 2.0 to 1.0, then the most recently ended Test Period (the “De Minimis Proceeds Threshold”Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(i) in any for such Fiscal Year.
(ii) If any Loan Party or any of its Subsidiaries disposes of any property in connection with an Asset Disposition which results in the realization by such Person of Net Cash Proceeds, the Borrower shall cause prepay an aggregate principal amount of Senior Debt equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be prepaid applied as set forth in clauses (vii) and (ix) below); provided, however, that, with respect to any Net Cash Proceeds realized under an Asset Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Asset Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower such Loan Party or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets performing the same or a similar function or otherwise used in the business of such Loan Party or such Subsidiary so long as within 180 days after the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); providedand provided further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period (or 21-month period, as applicable, an amount equal subject to any such Net Cash Proceeds a definitive agreement to be reinvested) shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(ii) immediately upon the earlier of the occurrence of a Default or the expiration of such 180 day period.
(Biii) [Reserved].
(C) If, at Upon the time that sale or issuance by any such prepayment would be required hereunder, the Borrower Loan Party or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 its Capital Securities (other than Refinancing Indebtedness which shall be treated any sales or issuances of Capital Securities to another Loan Party or in accordance connection with Section 2.19a Permitted Acquisition) or the exercise by any Person of any convertible Capital Securities issued by a Loan Party (other than the Warrants), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount Senior Debt 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 (vii) and (ix) below).
(iv) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt permitted under Sections 7.01 (a) – (i) and (k)), the Borrower shall prepay an aggregate principal amount of Senior Debt 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 (vii) and (ix) below).
(v) Immediately upon the receipt by any Loan Party or any Subsidiary of Net Cash Proceeds from the exercise of any Warrants, the Borrower shall prepay an aggregate principal amount of Senior Debt equal to (A) 100% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is equal to or greater than 2.50:1.0, (B) 75% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.50:1.0 but equal to or greater than 2.0:1.0 and (C) 50% of such Net Cash Proceeds if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 2.0:1.0 but equal to or greater than 1.50:1.0; provided, however, that if the Total Leverage Ratio as of the end of the immediately preceding Fiscal Quarter for which a Compliance Certificate has been received is less than 1.50:1.0, then the Borrower shall not be required to make a prepayment pursuant to this Section 2.05(b)(v).
(vi) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (ii), (iii), (iv) or (v) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Senior Debt 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 (vii) and (ix) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is five Business Days of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 180 days after the receipt of such Net Cash Proceedscash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; 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)(v).
(iiivii) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Senior Debt pursuant to the foregoing provisions of this Section 6.01(a2.05(b) and shall be applied to the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a)outstanding Loans; provided, commencing with the first full Fiscal Year ending after the Closing Datehowever, the Borrower shall cause offer to prepay a Ratable Portion of the Subject Private Placement Notes with any such prepayment amount pursuant to the terms of the Private Placement Note Purchase Agreement and, to the extent accepted by the Private Placement Noteholders, prepay the applicable Private Placement Notes so long as at least a Ratable Portion of the outstanding Loans is prepaid contemporaneously with such prepayment of Private Placement Notes; in each case accompanied by a certificate of a Responsible Officer of the Borrower demonstrating the calculation of such prepayment amount and applied, first, to be prepaid the Term A Loan and the Term B Loan (ratably to the remaining principal amortization payments) and, second, to the Revolving Credit Facility in the manner set forth in clause (ix) of this Section 2.05(b).
(viii) 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 than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(ix) 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), (iv) or (v) 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 “ECF Prepayment Reduction Amount”) may be retained by the 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)(iv). 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
Appears in 1 contract
Mandatory. (a) [Reserved].
(i) If (A) If the Borrower or any of the Restricted Subsidiaries Disposes of any property or assets pursuant to Section 7.05(1), (16), (10), (16) any Restricted Company consummates a Prepayment Asset Sale or (220) or (B) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any the Borrower or such Restricted Company Subsidiary of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause to be prepaid prepay on or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds Proceeds, subject to clause (2)(f) of this Section 2.07, an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required (x) if the Senior Secured Net Proceed Percentage Leverage Ratio for the most recent Test Period is greater than 1.50 to 1.00, 100% of all Net Cash Proceeds realized or received, (y) if the Senior Secured Net Leverage Ratio for the most recent Test Period is less than or equal to 1.50 to 1.00 and greater than 1.00 to 1.00, 50% of all Net Cash Proceeds realized or received in excess and (z) if the Senior Secured Net Leverage Ratio for the most recent Test Period is less than or equal to 1.00 to 1.00, 0% of the De Minimis all Net Cash Proceeds Threshold (collectively, the “Subject Proceeds”)realized or received; provided, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase Pari Passu Lien Debt or Permitted Pari Passu Secured 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 Pari Passu Lien Debt or Permitted Pari Passu Secured Refinancing Debt (or Permitted Refinancing thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower may apply such Net Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, 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 2.07(2)(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 such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.07(2)(b)(i) ifwith respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention intent to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B2.07(2)(b)(ii).
(Aii) With respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale Disposition (other than any Disposition specifically excluded from the application of Section 2.07(2)(b)(i)) or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A)Event, at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest (directly, or through one or more of its Restricted Subsidiaries) all or any portion of such Subject Net Cash Proceeds in assets used or useful for the business of the Borrower and its Restricted Companies Subsidiaries (A) within twelve (x12) 15 months following receipt of such Subject Net Cash Proceeds or (yB) if the Borrower or any of its Restricted Subsidiaries enters into a contract legally binding commitment to reinvest such Subject Net Cash Proceeds within such 15-month period following receipt thereof, 21 twelve (12) months following receipt of such Net Cash Proceeds, no later than one hundred and eighty (180) days after the end of such twelve (12) month period; provided, that if any Net Cash Proceeds are no longer intended to be or cannot be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodelection, as applicableand subject to clauses (e) and (f) of this Section 2.07(2), an amount equal to any such Net Cash Proceeds shall be applied within ten five (5) Business Days after the Borrower or such Restricted Subsidiary reasonably determines that such Net Cash Proceeds are no longer intended to be applied or cannot be so reinvested to the prepayment of the Term Loans as set forth in this Section 2.062.07(2)(b).
(Bc) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, If the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company Subsidiary incurs or issues any Indebtedness (i) not expressly permitted to be incurred or issued pursuant to Section 7.03 or (other than ii) that constitutes Credit Agreement Refinancing Indebtedness which shall be treated in accordance with Section 2.19)Indebtedness, the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)five
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of $5,000,000 individually or on a cumulative basis in any fiscal year of Holdings, then (x) the greater Borrower shall promptly notify the Administrative Agent of $20,000,000 and 15.5% such proposed Disposition or Event of Consolidated EBITDA as Loss (including the amount of the last day estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the most recently ended Test Period (the “De Minimis Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100.0% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $5,000,000 for the applicable fiscal year; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements (invest or reinvest, as applicable, within 365 days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received from an Event of Loss or, in excess each case, if so committed to be invested or reinvested within such 365 day period, invested or reinvested within 180 days after such initial 365 day period, the Net Cash Proceeds thereof in assets used or useful in the business of the De Minimis Proceeds Threshold Borrower and its Subsidiaries (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(Aother than current assets), at the option of the Borrower, and then so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section 2.8(b)(i) in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested or contractually committed to be invested or reinvested (and actually reinvested within such extension period) as described in the Borrower’s notice within such 365-day period (or such extension period). Promptly after the end of such 365-day period (or such extension period), the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $5,000,000 for the relevant declined applicable fiscal year not so invested or reinvested. The amount of each such prepayment shall be applied first to any the outstanding Term Lender or any holder Loans until paid in full (such prepayments being applied ratably to the remaining installments of Other Applicable Indebtednessprincipal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(ii) If after the Closing Date the Borrower or any Restricted Company incurs Subsidiary shall incur or issues assume any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with that permitted by Section 2.19)7.1, the Borrower shall cause promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or assumption to be prepaid an aggregate principal amount received by or for the account of Term Loans the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such incurrence or assumption the Borrower shall prepay the Obligations in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 7.1 or any other terms of this Agreement.
(iii) Within ten Business Days fifteen (15) days after annual financial statements have been or are required to be have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a6.1(b), commencing beginning with the first full Fiscal Year fiscal year ending after the Closing DateDecember 31, 2022, the Borrower shall cause prepay the Subject Obligations by an amount equal to (1) 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the sum of:
(A) all voluntary prepayments of Term Loans and any Incremental Term Loans; and
(B) all voluntary prepayments of Revolving Loans to the extent the applicable Revolving Credit Commitments are permanently reduced by the amount of such payments; in each case of clauses (ii)(A) and (iii)(B) above, during such calendar year (and not applied to the Excess Cash Flow prepayment under this clause (iii) for the prior year) or after the end of such calendar year and prior to the prepayment date in this clause (iii), and to the extent such prepayments are funded with Internally Generated Funds; provided that (A) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 3.00:1.00 but equal to or greater than 2.50:1.00, then such percentage shall be reduced to 25.0% and (B) if the Consolidated Total Net Leverage Ratio as of the end of such fiscal year is less than 2.50:1.00, then such percentage shall be reduced to 0.0%. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full (such prepayments being applied ratably to the remaining installments of principal (other than the final payment paid on the Term Loans on the Term Loan Maturity Date)), and then to the Revolving Loans until paid in full (without a corresponding permanent reduction of the Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit.
(iv) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first ratably to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in an aggregate principal amount (the “ECF Prepayment Amount”)case of any Term Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) (AIf the Borrower or any of its Subsidiaries Disposes of any property pursuant to Section 7.05(f) If (1or 7.05(p) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of $50,000,000 in the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) aggregate for all such Dispositions in any Fiscal Yearfiscal year, the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to the lesser of (A) 100% of such Net Cash Proceeds and (B) the aggregate outstanding amount of all Term Loans immediately upon receipt thereof by such Person (such prepayments to be prepaid on or prior applied as set forth in clause (iii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b), at the election of the Borrower (as notified by the Borrower to the date which is ten Administrative Agent within five Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in useful assets in the business of so long as within eighteen (18) months after the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds Net Cash Proceeds, such reinvestment shall have been consummated or a written commitment therefor shall have been signed (y) if in either case, as reported in a notice provided by the Borrower enters into a contract in writing to reinvest the Administrative Agent); provided further, however, in the case of written commitment to invest such Subject Net Cash Proceeds within eighteen (18) months after the receipt of such 15Net Cash Proceeds, such reinvestment shall be consummated within twenty-month period following receipt thereof, 21 four (24) months following after the receipt of such Net Cash Proceeds; providedprovided further, however, that if any Net Cash Proceeds are no longer intended not subject to be so reinvested at any time after delivery of a notice of reinvestment election such written commitment or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(i).
(Bii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to the lessor of (A) 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or prior such Subsidiary and (B) the aggregate outstanding amount of all Term Loans (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceeds.
be applied as set forth in clause (iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(abelow), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”).
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as 500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the last day Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the most recently ended Test Period estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the “De Minimis Borrower or the Subsidiary of the Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the Borrower; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements invest or reinvest, as applicable, within one hundred eighty (180) days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received in excess from an Event of the De Minimis Proceeds Threshold (collectivelyLoss, the “Subject Proceeds”); providedNet Cash Proceeds thereof in assets used or useful in the business, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and then so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice within such one hundred eighty (180) day period. Promptly after the end of such one hundred eighty (180) day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the relevant declined Borrower not so invested or reinvested. The amount of each such prepayment shall be applied to any Term Lender the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). If the Administrative Agent or any holder the Required Lenders so request, all proceeds of Other Applicable Indebtednesssuch Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Restatement Effective Date the Borrower or any Restricted Company incurs or issues Subsidiary shall issue any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 new Ownership Interests (other than Refinancing Excluded Equity Issuances) or incur or assume any Indebtedness which shall be treated in accordance with other than that permitted by Section 2.19)6.11, the Borrower shall cause to be prepaid an aggregate principal amount promptly notify the Administrative Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received therefrom on by or prior to for the date which is five Business Days after account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) Within ten If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Days after financial statements have been or are required Day of such notice) pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be delivered pursuant applied to Section 6.01(a) and the related Compliance Certificate has been or is required Revolving Loans until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be delivered pursuant held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to Section 6.02(a), commencing with the first full Fiscal Year ending Letters of Credit.
(iv) If after the Closing DateRestatement Effective Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall cause promptly notify the Subject Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) [reserved].
(vi) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(vii) Upon the occurrence of a Change of Control, concurrently with the closing of any such transaction, at the election of the Administrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Prime Rate Loans until payment in full thereof with any balance applied to Borrowings of SOFR Loans. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in an aggregate principal amount (the “ECF Prepayment Amount”)case of any SOFR Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 250,000 individually or on a cumulative basis in any Fiscal Yearfiscal year of Credit Parties, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt Borrower Representative shall promptly notify the Agent of such Subject Proceeds proposed Disposition or Event of Loss (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed including the amount of the Subject estimated Net Cash Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms received by such Credit Party or such Subsidiary in respect thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause two (2) aboveBusiness Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $250,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Borrower Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to subsequently offer make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in Borrower Representative’s notice within such one hundred eighty (180) day period. Promptly after the end of such one hundred eighty (180) day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied to (in the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednessorder determined by Agent) the Revolving Loans, Swing Loans and the Reimbursement Obligations.
(ii) If after the Restatement Closing Date, any Restricted Company incurs Credit Party or issues any Subsidiary shall incur or assume any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with that permitted by Section 2.196.11 hereof), Borrower Representative shall promptly notify the Borrower shall cause to be prepaid an aggregate principal amount Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds of such incurrence or assumption to be received therefrom on by or prior to for the date which is five account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within two (2) Business Days after Days) upon receipt by such Credit Party or such Subsidiary of Net Cash Proceeds of such incurrence or assumption Borrowers shall prepay the receipt Obligations in the amount of such Net Cash Proceeds.
. The amount of each such prepayment shall be applied to (iiiin the order determined by Agent) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a)Revolving Loans, commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)Swing
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Addus HomeCare Corp)
Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any property (Aother than any Disposition of any property permitted by Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2l)) or any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause prepay an aggregate principal amount of Term A Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds (or, if the Borrower or any of its Subsidiaries has incurred Indebtedness that is permitted under Section 7.02 that is secured, on an equal and ratable basis with the Term A Loans, by a Lien on the Collateral permitted under Section 7.01, and such Indebtedness is required to be prepaid or redeemed with the net proceeds of any such Disposition or Casualty Event, then such lesser percentage of such Net Cash Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net Cash Proceeds based on the aggregate principal amount of Initial Term A Loans and such Indebtedness then outstanding) promptly, but in any Additional Term Loans then event within five Business Days, after actual receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii) and subject to ratable prepayment requirements clauses (the “Subject Loans”iv) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold and (collectively, the “Subject Proceeds”v) below); provided, however, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale such Net Cash Proceeds actually received by or paid to or for the account of the Borrower or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A)of its Subsidiaries, at the option election of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of such Subject Net Cash Proceeds in assets that are used or useful in the business of the Restricted Companies Borrower and its Subsidiaries so long as within (x) 15 12 months following receipt of such Subject Proceeds or (y) if after the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following actual receipt of such Net Cash ProceedsProceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any portion of such Net Cash Proceeds in such assets so long as such binding commitment is entered into within 12 months after the actual receipt of such Net Cash Proceeds and within 18 months after the actual receipt of such Net Cash Proceeds such reinvestment shall have been completed, and, subject to the next succeeding proviso, no prepayment under this Section 2.05(b)(i) shall be required with respect to that portion of such Net Cash Proceeds that the Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period applied in accordance with clause (x) or 21-month (y) of the immediately preceding proviso shall be promptly, but in any event within five Business Days after the end of the applicable reinvestment period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term A Loans as set forth in this Section 2.062.05(b)(i).
(Bii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discountx) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 7.02 or (other than y) that constitutes Refinancing Indebtedness which shall be treated in accordance with Section 2.19)Commitments, Refinancing Loans or Refinancing Equivalent Debt, the Borrower [Valvoline - Credit Agreement] shall cause to be prepaid prepay an aggregate principal amount of Term A Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is promptly, but in any event within five Business Days Days, after actual receipt thereof by the receipt of Borrower or such Net Cash ProceedsSubsidiary (such prepayments to be applied as set forth in clause (iii) below and subject to clause (iv) below).
(iii) Within ten Business Days after financial statements Each prepayment of Term A Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied ratably to the Term A Loans then outstanding and to the principal repayment installments thereof as directed by the Borrower.
(iv) Notwithstanding any of the other provisions of clause (i) or (ii) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or any Event of Default, shall have been occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i) or (ii) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Term A Loans on such date is less than or equal to $1,000,000, the 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 Term A Loans exceeds $1,000,000, in which case the prepayment amount shall be such excess over $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 (or waiver in accordance with Section 10.01) 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 Term A Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be delivered applied to prepay Term A Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (iv)) but which have not previously been so applied.
(v) Notwithstanding any other provisions of this Section 2.05(b), (A) to the extent that any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 6.01(a2.05(b)(i) and (a “Foreign Disposition”) or the related Compliance Certificate has been Net Cash Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or is delayed by applicable local Law from being repatriated to the United States, the portion of such Net Cash Proceeds so affected will not be required to be delivered applied to prepay Term A Loans at the time provided in this Section 2.05(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable local Law will not permit repatriation to the United States (the Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local Law to permit such repatriation), and once such repatriation of any of such affected Net Cash Proceeds is permitted under the applicable local Law, such repatriation will be promptly effected and an amount equal to such repatriated Net Cash Proceeds will be promptly (and in event not later than two (2) Business Days after such repatriation) applied (net of additional taxes payable or reserved against as a result thereof) to the prepayment of the Term A Loans pursuant to this Section 6.02(a)2.05(b) to the extent otherwise provided herein and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition or any Foreign Casualty Event would have a material adverse tax consequence with respect to such Net Cash Proceeds, commencing with the first full Fiscal Year ending after Net Cash Proceeds so affected may be retained by the Closing Dateapplicable Foreign Subsidiary.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, L/C Borrowings and Swing Line Loans and/or Cash Collateralize such L/C Obligations (other than the Subject Loans to be prepaid L/C Borrowings) in an aggregate principal amount equal to such excess.
(vii) Prepayments of the “ECF Prepayment Amount”Revolving Credit Facility made pursuant to clause (vi) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and 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. 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 Borrower) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Valvoline Inc)
Mandatory. (i) (A) If (1) Upon any Restricted Company consummates a Prepayment Asset Sale Extraordinary Receipt received by or (2) any Casualty Event occurs, which in paid to or for the aggregate results in the realization or receipt by any Restricted Company account of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required (other than any Excluded Joint Venture) in respect of its property or assets, after the first $50,000,000 of Net Cash Proceeds relating to repay or prepayment any First Lien Debt of the type described Extraordinary Receipts in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of since the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof)Closing Date, and the thereafter any amount in excess of the prepayment $5,000,000 for any one event or series of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboverelated events, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the 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 is five Business Days the Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, 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 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) and (C) within 10 days of the date the Borrower consummates such restoration, repair or 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 Net Cash Proceeds have been reinvested 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); provided further that any Net Cash Proceeds not so 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.
(ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x) or (k)) which results in the realization by such Person of Net Cash Proceeds, after the first $10,000,000 of Net Cash Proceeds relating to any such Dispositions in the aggregate since the Closing Date, and thereafter any amount in excess of $2,500,000 for any one event of series of related events, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business, 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 the Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, 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 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) and (C) within 10 days of the date the Borrower consummates such reinvestment, 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 Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not so 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.
(iii) Within ten Business Days Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity and, thereafter, to the Revolving Credit Facility in the manner set forth in clause (iv) of this Section 2.05(b).
(iv) Prepayments of the Revolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in full, second, shall be applied to prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, and, third, shall be applied to prepay 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 clauses (i) or (ii) of this Section 2.05(b), the amount remaining, if any, after financial statements the prepayment in full of all Loans and L/C Borrowings outstanding at such time, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(v) Notwithstanding the provisions of Section 2.05(b)(i) or (b)(ii), if any mandatory prepayments under Section 2.05(b)(i) or (b)(ii) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, the Borrower may defer the making of such 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 or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)made.
Appears in 1 contract
Mandatory. (a) The Revolving Loan Commitment Amount shall be reduced as set forth below.
(i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which Following the prepayment in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess full of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearTerm Loans, the Borrower shall cause Revolving Loan Commitment Amount shall, without any further action, automatically and permanently be reduced on the date the Term Loans would otherwise have been required to be prepaid on with any Net Casualty Proceeds, Net Debt Proceeds, Net Disposition Proceeds or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and Equity Proceeds, in any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) case in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, amount by which the “Subject Proceeds”); provided, that no such prepayment shall Term Loans would otherwise be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) prepaid if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise had been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednessoutstanding.
(ii) If On the Stated Maturity Date and on each Quarterly Payment Date occurring during any Restricted Company incurs period set forth below, the then Revolving Loan Commitment Amount shall, without any further action, automatically and permanently be reduced by an amount equal to the amount set forth below opposite the Stated Maturity Date or issues such Quarterly Payment Date, as applicable (unless on or prior to any Indebtedness not expressly permitted such date the then Revolving Loan Commitment Amount shall have been reduced to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness a lesser amount, in which case the Revolving Loan Commitment Amount shall be treated equal to such lesser amount): Period Amount of Mandatory Commitment Reduction 04/01/03 through (and including) 03/31/04 $1,250,000 04/01/04 through (and including) 03/31/05 $2,500,000 04/01/05 through (and including) 03/31/06 $3,125,000 04/01/07 through (and including) 03/31/07 $3,750,000 04/01/07 through (and including) the Stated Maturity Date for Revolving Loans $1,875,000 provided, however, that, notwithstanding the foregoing, on the Revolving Loan Commitment Termination Date, the Revolving Loan Commitment Amount shall be zero.
(b) On each date set forth below, the then Term A Loan Commitment Amount shall, without any further action, automatically and permanently be reduced by the amount set forth opposite such date (unless on or prior to any such date the then Term A Loan Commitment Amount shall have been reduced to a lesser amount, in which case the Term A Loan Commitment Amount shall be equal to such lesser amount): Date of Mandatory Amount of Mandatory Commitment Reduction Commitment Reduction June 30, 2000 $25,000,000 December 31, 2000 $25,000,000 March 31, 2001 $25,000,000 June 30, 2001 $25,000,000 provided, however, that, notwithstanding the foregoing, on the Term A Loan Commitment Termination Date, the Term A Loan Commitment Amount shall be zero; provided further, however, that if the Borrower shall have previously delivered a Borrowing Request in accordance with Section 2.19)2.3.1 in respect of Borrowings of Term A Loans to be made on any date set forth above, the Borrower mandatory reduction of the Term A Loan Commitment Amount shall cause not take effect until immediately after the making of such Term A Loans, and then the Term A Loan Commitment Amount shall be reduced to be prepaid an amount equal to the lesser of (A) the amount set forth above and (B) the amount equal to (x) the then applicable Term A Loan Commitment Amount (immediately prior to any Borrowing or commitment reduction) less (y) the aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsBorrowing.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Mandatory. (i) (A) If (1x) at any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yeartime, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate outstanding principal amount of Initial Term all Revolving Credit Loans plus the sum of all outstanding Swingline Loans and L/C Obligations exceeds the Revolving Credit Commitment, (y) at any Additional Term time, the outstanding principal amount of all Dollar Tranche Revolving Credit Loans then subject plus the sum of all outstanding Swingline Loans and L/C Obligations exceeds the Dollar Tranche Revolving Credit Commitment or (z) on any Computation Date, the outstanding principal amount of all Designated Currency Tranche Revolving Credit Loans exceeds 105% of the Designated Currency Tranche Revolving Credit Commitment, the Borrowers agree to ratable prepayment requirements (repay immediately upon notice from the “Subject Loans”) Administrative Agent, by payment to the Administrative Agent for the account of the Lenders, Extensions of Credit in an amount equal to Required Net Proceed Percentage such excess with each such repayment applied first to the principal amount of outstanding Swingline Loans, second to the principal amount of all Net Cash Proceeds received in excess outstanding Loans and third, with respect to any Letters of Credit then outstanding, a payment of cash collateral into a cash collateral account opened by the Administrative Agent, for the benefit of the De Minimis Revolving Credit Lenders in an amount equal to the aggregate then undrawn and unexpired amount of such Letters of Credit (such cash collateral to be applied in accordance with Section 11.2(b), and such cash collateral to be shared ratably between Letters of Credit issued and outstanding under the Dollar Tranche and the Designated Currency Tranche).
(ii) In the event and on each occasion that any Net Proceeds Threshold (collectivelyare received by or on behalf of the Company or any Restricted Subsidiary in respect of any Prepayment Event, the Company, subject to Section 2.10(b), shall, promptly, and in any event within five (5) Business Days after such Net Proceeds are received by the Company or such Restricted Subsidiary, prepay the Term Loan as set forth below in an aggregate amount equal to 100% of such Net Proceeds; provided that, in the case of any event described in clause (a) of the definition of the term “Subject Prepayment Event”, if a Responsible Officer of the Company shall deliver to the Administrative Agent a certificate to the effect that the Company or the applicable Restricted Subsidiary, as the case may be, intends to apply the Net Proceeds from such event (or a portion thereof specified in such certificate), within 360 days after receipt of such Net Proceeds”); provided, that to acquire real property, equipment or other assets (excluding inventory) to be used or useful in the business of the Company or the applicable Restricted Subsidiary, as the case may be, or to consummate a Permitted Acquisition, then no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds paragraph in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of Net Proceeds specified in such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceedscertificate; provided, further, that if to the extent any such Net Cash Proceeds are no longer intended to be have not been so reinvested at any time after delivery applied by the end of a notice of reinvestment election or are not so reinvested during such 15360-month period or 21-month day period, as applicable, then a prepayment shall be required at the end of such period in an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in that have not been so applied. All prepayments under this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(iii) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a Term Loan (to be applied to installments thereof pro rata basis (determined in a manner consistent with that set forth in rata). No prepayments shall be required under this clause (D)); it being understood and agreed that if any Term Lender ii) subsequent to the termination or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount expiry of the relevant declined prepayment to any Term Lender or any holder Loan Commitments and the full repayment of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of outstanding Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash ProceedsLoan.
(iii) Within ten Business Days after financial statements have been Notwithstanding any other provisions of this Section 2.5(a) to the contrary, (i) to the extent that any Net Proceeds in respect of any Prepayment Event by a Foreign Subsidiary is prohibited or are delayed by Applicable Law from being repatriated to the United States, the portion of such Net Proceeds so affected will not be required to be delivered applied to repay the Term Loan at the times provided above but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the Applicable Law will not permit repatriation to the United States (the Company hereby agreeing to cause the applicable Foreign Subsidiary to promptly use commercially reasonable efforts to take all actions reasonably required by the Applicable Law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the Applicable Law, such repatriation will be effected and such repatriated Net Proceeds will be promptly applied (net of additional taxes payable or reserved against as a result thereof) to the repayment of the Term Loan pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a2.5(a)(ii), commencing with to the first full Fiscal Year ending after extent provided herein and (ii) to the Closing Dateextent that the Company has determined in good faith that repatriation of any or all of such Net Proceeds would have a material adverse tax consequence, the Borrower shall cause Net Proceeds so affected may be retained by the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)applicable Foreign Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Blackbaud Inc)
Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any property (Aother than any Disposition of any property permitted by Section 7.05(a) If through (1f)) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to 75% of such Net Cash Proceeds within one (1) Business Day after receipt thereof by such Person (such prepayments to be prepaid applied as set forth in clause (v) 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 Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets so long as within 180 days after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); provided, further, however, that if any the Borrower shall notify the Administrative Agent on or prior to the date 180 days after receipt of such Net Cash Proceeds are no longer intended that the Borrower (directly or indirectly through one of its Subsidiaries) intends and expects to reinvest all or a specified portion of such Net Cash Proceeds in operating assets useful in its or one of its Subsidiaries’ businesses after such 180th day but within 360 days after receipt of such Net Cash Proceeds, then such period of time to consummate such purchase shall be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during extended to such 15-month period or 21-month period360th day; and provided, as applicablefurther, an amount equal to however, that any such Net Cash Proceeds not subject to such definitive agreement or so reinvested within any such designated time period shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(i).
(ii) Upon the sale or issuance by the Borrower or any of its Subsidiaries of any of its Equity Interests (other than any sales or issuances of Equity Interests to another Loan Party), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 50% of all Net Cash Proceeds received therefrom within ten one (1) Business Days Day after receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (v) below); provided that for this clause (ii), no amounts received by the Borrower from (x) the issuance of stock to any employee stock purchase plan in effect on the date of this Agreement or (y) the exercise of stock options on the Borrower’s common stock, shall give rise to a mandatory prepayment obligation.
(iii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within one (1) Business Day after receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (v) below.
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (i), (ii) or (iii) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all Net Cash Proceeds received therefrom within one (1) Business Day after receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (v) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of receipt of such insurance proceeds, condemnation awards or indemnity payments), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary may apply within 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; and provided, further, however, that any cash proceeds not so applied shall be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(iv).
(Bv) [Reserved]Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the principal repayment installments thereof in inverse order of maturity.
(Cvi) IfNotwithstanding any of the other provisions of clause (i), at the time that (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), and no Event of Default, shall have occurred and be continuing, if, on any such date on which a prepayment would otherwise be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered made pursuant to be so repurchased, “Other Applicable Indebtedness”) clause (or offer to repurchase such Other Applicable Indebtednessi), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment (ii), (iii) or (iv) of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of this Section 2.05(b), the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if Net Cash Proceeds required by such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated clause to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay Term Loans on such date is less than or equal to $1,000,000, the Subject 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), (ii), (iii) or (iv) of this Section 2.05(b) to be applied to prepay Term Loans in accordance with exceeds $1,000,000. During such deferral period the terms hereof Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that 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 clause Section 2.05(b). Upon the occurrence of a Default under
Section 8.01 (Da) or Section 8.01(f)); it being understood and agreed that if , or any Term Lender or holder Event of Default, during any such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) abovedeferral period, the Borrower shall not be required to subsequently offer immediately prepay the Loans in the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to by the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or Borrower and other amounts, as applicable, that are required to be delivered pursuant applied to prepay Loans under this Section 6.01(a2.05(b) and the related Compliance Certificate has been or is required (without giving effect to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after and second sentences of this clause (vi)) but which have not previously been so applied.
(vii) If for any reason the Closing DateTotal Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess. 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 “ECF Prepayment Amount”)Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Cnet Networks Inc)
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in At the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess end of the greater --------- (-----) Year after the Effective Date hereof, CONTRACTOR shall relinquish to the GOVERNMENT not less than twenty five percent (25%) of $20,000,000 the original Area on the Effective date not then converted into a Development Lease (s)" Area subject to relinquish. Such relinquishment shall be in a single unit of whole Exploration Blocks or originally existing parts of Exploration Blocks not converted into Development Lease(s) unless otherwise agreed upon between GANOPE and 15.5% of Consolidated EBITDA CONTRACTOR so as to enable the relinquishment requirements to be precisely fulfilled, then relinquish the remaining Area at the end of the last day Exploration phase except the areas converted to development lease(s). Contractor may retain the " Area subject to relinquish" in any Exploration phase Subject to the approval of the most recently ended Test Period Minister of Petroleum by submitting at least six (6) months pre- notification to GANOPE, including the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause additional technical activities to be prepaid on or prior undertaken in the " Area subject to relinquish" during the next exploration period of years which CONTRACTOR elects to extend after the initial exploration period provided that CONTRACTOR shall submit a statement of costs and expenses of such additional activities, It is understood that CONTRACTOR is committed to such financial and technical commitments in addition to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice Exploration commitments related to the Administrative Agent of its intention second --------------- (---) Exploration period according to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause Article IV (b) ,provisions of Article IV of this Agreement shall be applied, provided that CONTRACTOR shall submit a letter of guarantee with an equal amount to the costs of such additional activities, according to annex ( c) of this agreement and shall also pay an unrecoverable bonus for retaining "the Area subject to relinquish". At the end of the definition thereof ---------- (such Indebtedness required to be so prepaid or offered to be so repurchased------) year after the Effective Date hereof, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis CONTRACTOR shall relinquish to the prepayment GOVERNMENT an additional --------------- percent (--------%) of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined original Area on the basis of Effective date not then converted to a Development Lease(s). CONTRACTOR shall also relinquish the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated "Area subject to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness relinquish" retained pursuant to the terms thereofabove mentioned paragraph, (and excluding the remaining amount, if any, of the Subject Proceeds area(s) converted to Development Lease(s). Such relinquishment shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood single unit of whole Exploration Blocks not converted to Development Lease(s) unless otherwise agreed upon between GANOPE and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, CONTRACTOR so as to enable the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted relinquishment requirements to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), precisely fulfilled. CONTRACTOR may retain the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)above mentioned additional --------------- percent ( -------
Appears in 1 contract
Samples: Concession Agreement
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of its Subsidiaries shall have received Net Cash Proceeds in excess of $50,000,000 from (A) the greater issuance in the capital markets by the Borrower or any of its Subsidiaries of any Debt (other than Debt of the nature described in clauses (i) and (iii) of Section 5.02(e) and other than commercial paper issued by Oracle or New Oracle), or (B) the sale or issuance in the capital markets by the Borrower or any of its Subsidiaries of equity interests for Net Cash Proceeds, in the case of each of clauses (A) and (B), to any party other than the Borrower or any of its Subsidiaries, the Borrower shall be required to make a mandatory prepayment of Advances in an aggregate amount equal to such Net Cash Proceeds in accordance with this Section 2.08(b); provided, that, if the Borrower has previously made a mandatory prepayment of Advances in accordance with this Section 2.08(b), no further mandatory prepayment shall be required until the amount of Net Cash Proceeds of the nature described in clauses (A) and (B) again exceed $20,000,000 and 15.5% 50,000,000. Any mandatory prepayment of Consolidated EBITDA as Advances required to be made pursuant to this Section 2.08(b) shall be made on the earlier of (1) the last day of the most recently ended Test Interest Period (the “De Minimis Proceeds Threshold”) in for any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days Advance ending after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of until all such Net Cash Proceeds received in excess of have been prepaid) and (2) the De Minimis Proceeds Threshold (collectively, 30th calendar day after the “Subject Proceeds”)receipt thereof and shall be applied to the Advances comprising a Borrowing ratably; provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifthat, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be have been applied to prepay Advances not later than the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days 30th calendar day after the date of that such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessNet Cash Proceeds exceed $50,000,000.
(ii) If any Restricted Company incurs or issues any Indebtedness by the fifth Business Day after the date of Borrowing hereunder the Acquisition and the Mergers shall not expressly permitted to be incurred or issued pursuant to Section 7.03 have been consummated, then, unless such prepayment under this clause (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)ii) is waived by the Required Lenders, the Borrower shall cause to be prepaid an aggregate principal amount of Term within three Business Days thereafter prepay the Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceedsfull.
(iii) Within ten Business Days after financial statements have been or are required All prepayments under this subsection (b) shall be made together with accrued interest to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with date of such prepayment on the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)prepaid.
Appears in 1 contract
Mandatory. (i) At any time any Term Loans (Aincluding under any Incremental Term Facility) If (1) are outstanding, if the Borrower or any of its Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Subsidiaries receives Net Cash Proceeds in excess of the greater $5,000,000 from any Asset Disposition or any Recovery Event (or series of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yearrelated Asset Dispositions or Recovery Events), the Borrower shall cause shall, subject to be prepaid on or prior clause (iii) below, prepay an aggregate principal amount equal to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans within two (2) Business Days following receipt thereof by such Person (such prepayments to be applied as set forth in clauses (iii) and (vii) below); provided, however, that with respect to any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received from an Asset Disposition or Recovery Event described in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A2.05(b)(i), at the option election of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or the applicable Restricted Subsidiary (or any combination of the foregoing) may reinvest all or any portion of such Subject Net Cash Proceeds if such reinvestment complies with the following requirements: (w) the Borrower shall deliver to the Administrative Agent within one (1) Business Day of the date of its receipt of Net Cash Proceeds from such Disposition a certificate of a Responsible Officer to the effect that the Borrower and/or any such Restricted Subsidiary intends to reinvest all or any portion of such Net Cash Proceeds in the business of the Restricted Companies within accordance with this Section 2.05(b), (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to or the applicable Restricted Subsidiary (or any combination of the foregoing) shall reinvest such Subject Net Cash Proceeds to acquire operating assets (including the construction of any such assets and the Acquisition of all of the Equity Interests in one or more Persons owning or constructing any such assets) or to improve, enlarge, develop, re-construct or repair the affected asset, or any combination of the foregoing, in each case, so long as within such 15-month period following receipt thereof, 21 months following 365 days after the receipt of such Net Cash Proceeds, such acquisition, construction, improvement or other reinvestment action shall have been consummated; provided, however, that if in the case of any Asset Disposition of, or Recovery Event with respect to, any Collateral, in the event the Borrower or such Restricted Subsidiary chooses to reinvest such Net Cash Proceeds, the Borrower or such Restricted Subsidiary, as applicable, shall reinvest such Net Cash Proceeds in assets of the type described in clause (x) above (including the construction of such assets and the Acquisition of all of the Equity Interests in one or more Persons owning or constructing such assets) which will constitute Collateral and take all actions required by Section 6.13 with respect thereto (provided that any Equity Interests purchased with Net Cash Proceeds of Collateral pursuant to this Section 2.05(b) shall be issued by a Person organized under the laws of any political subdivision of the United States); and provided further, however, that any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(ii). Pending the application of any such Net Cash Proceeds, the Borrower may reduce outstanding Indebtedness under the Revolving Credit Loans or invest such Net Cash Proceeds in Cash Equivalents in which the Administrative Agent, for the benefit of the Secured Parties, has a perfected first priority security interest, subject only to Permitted Collateral Liens. The provisions of this Section do not constitute a consent to the consummation of any Disposition not permitted by Section 7.05. Notwithstanding anything contained herein to the contrary, so long as no Default under Section 8.01(a) or 8.01(f) or Event of Default shall have occurred and be continuing on the date of receipt of such proceeds, any Net Cash Proceeds received as a result of the Disposition of the Ingleside, Texas spoolbase located at 0000 Xxxxxx X, Xxxxxxxxx, Xxxxx (and ancillary equipment with respect thereto) shall not be required to be reinvested or applied as a prepayment as provided above, but may be used by the Loan Parties for general corporate purposes not in violation of any Law or breach of any Loan Document; if a Default under Section 8.01(a) or 8.01(f) or Event of Default shall have occurred and be continuing on the date of receipt of such proceeds, the Borrower must prepay an aggregate principal amount equal to 100% of such Net Cash Proceeds within one (1) Business Day of receipt thereof, to be applied pursuant to clauses (iii) and (vi) below. With respect to any Asset Disposition or Recovery Event which will result in Net Cash Proceeds in excess of $25,000,000, the Borrower shall notify the Administrative Agent thereof on or prior to the date of the applicable Asset Disposition or promptly following the date that the Borrower has actual knowledge that a Recovery Event has occurred.
(Bii) [Reserved].
At any time any Term Loans (Cincluding under any Incremental Term Facility) Ifare outstanding, at upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues excluding any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03(a) through (f) and (h) through (m)), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on the next Business Day following receipt thereof by the Borrower or prior any Restricted Subsidiary (such prepayments to be applied as set forth in clauses (iii) and (vi) below). The provisions of this Section do not constitute a consent to the date which is five Business Days after issuance or incurrence of any Indebtedness by the receipt Borrower or any of such Net Cash Proceedsits Restricted Subsidiaries not otherwise permitted hereunder.
(iii) Within ten Business Days after financial statements Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, ratably to the Term Facility and to the principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility in the manner set forth in clause (vi) of this Section 2.05(b).
(iv) Notwithstanding any of the other provisions of clause (i), (ii) or (iii) 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 been occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (ii) or (iii) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $5,000,000, the Borrower may defer such prepayment until the first date thereafter on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (ii) or (iii) of this Section 2.05(b) to be applied to prepay Loans exceeds $5,000,000. 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 delivered pursuant applied to prepay Loans under this Section 6.01(a2.05(b) (without giving effect to the first and the related Compliance Certificate has second sentences of this clause (iv)) but which have not previously been or is so applied.
(v) If, on any date on which a prepayment would otherwise be required to be delivered made pursuant to clause (i) or (ii) of this Section 6.02(a2.05(b), commencing with the first full Fiscal Year ending after Borrower may, upon prior written notice to the Closing DateAdministrative Agent, elect to defer such all or any portion of such required prepayment until the end of an Interest Period provided that (A) all of the applicable Net Cash Proceeds not previously applied to prepay the Loans shall be deposited in a blocked deposit account at Bank of America on or before the Business Day following receipt of such proceeds and (B) such proceeds are applied to prepay the Loans at the end of such Interest Period. The Borrower hereby grants to the Administrative Agent, for the benefit of the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. During the continuance of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default during any such deferral period, the Administrative Agent may, and at the direction of the Required Banks shall, prepay the Loans in the amount of all Net Cash Proceeds and proceeds thereof on deposit in, or credited to, such deposit account.
(vi) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(vii) Prepayments of the “ECF Prepayment Amount”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, 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 may be retained by the Borrower for use in the ordinary course of its business. 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 Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Helix Energy Solutions Group Inc)
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Loan Party or any of its Subsidiaries disposes of any property in connection with an Asset Sale or (2) any Casualty Event occurs, Disposition which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater $10,000,000 for such transaction (or series of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yearrelated transactions), the Borrower shall cause prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be prepaid applied as set forth in clause (iv) below); provided, however, that, with respect to any Net Cash Proceeds realized under an Asset Disposition described in this Section 2.05(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Asset Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower such Loan Party or any Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets performing the same or a similar function or otherwise used in the business of such Loan Party or any Subsidiary so long as within 180 days after the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in writing to the Administrative Agent); providedand provided further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period (or 21-month period, as applicable, an amount equal subject to any such Net Cash Proceeds a definitive agreement to be reinvested) shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.06.
2.05(b)(i) immediately upon the earlier of (Bx) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt request of the type described in clause Required Lenders following the occurrence of an Event of Default or (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1y) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date expiration of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness180 day period.
(ii) If Upon the sale or issuance by any Restricted Company incurs Loan Party or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 of its Subsidiaries of any of its Capital Securities (other than Refinancing Indebtedness which shall be treated any sales or issuances of Capital Securities (A) to another Loan Party or any Subsidiary, (B) in accordance connection with Section 2.19a Permitted Acquisition or (C) in connection with the exercise of any stock options by the management or employees of any Loan Party) or the exercise by any Person of any convertible Capital Securities issued by a Loan Party, in each case, resulting in receipt by such Loan Party or Subsidiary, as applicable, of Net Cash Proceeds in excess of $5,000,000 for such sale or issuance (or series of related sales or issuances), the Borrower shall cause to be prepaid prepay the Loans and/or Cash Collateralize the L/C Obligations in an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by such Loan Party or prior such Subsidiary (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clause (iv) below).
(iii) Within ten Business Days after financial statements have been Upon the incurrence or are required to be delivered pursuant to Section 6.01(aissuance by any Loan Party or any of its Subsidiaries of any Debt (other than Debt permitted under Sections 7.01 (a) and the — (o)) resulting in receipt by such Loan Party or Subsidiary, as applicable, of Net Cash Proceeds in excess of $5,000,000 for such incurrence or issuance (or series of related Compliance Certificate has been incurrences or is required to be delivered pursuant to Section 6.02(aissuances), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause prepay the Subject Loans to be prepaid and/or Cash Collateralize the L/C Obligations in an aggregate principal amount 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 clause (iv) below).
(iv) All amounts required to be paid pursuant to this Section 2.05(b) shall be applied pro rata to each Class of Term Loans (ratably to the “ECF Prepayment Amount”remaining principal amortization payments of each such Loan).
(v) 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 than the L/C Borrowings) in an aggregate amount equal to such excess.
(vi) 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. 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as 250,000 individually or $500,000 on a cumulative basis in any fiscal year of the last day Borrower, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the most recently ended Test Period estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the “De Minimis Borrower or the Subsidiary of the Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements invest or reinvest, as applicable, within one hundred eighty (180) days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received in excess from an Event of the De Minimis Proceeds Threshold (collectivelyLoss, the “Subject Proceeds”); providedNet Cash Proceeds thereof in assets used or useful in the business, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and then so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice within such one hundred eighty (180) day period. Promptly after the end of such one hundred eighty (180) day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the relevant declined Borrower not so invested or reinvested. The amount of each such prepayment shall be applied first to any the outstanding Term Lender Loans until paid in full, and then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). If the Administrative Agent or any holder the Required Lenders so request, all proceeds of Other Applicable Indebtednesssuch Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Collateral Account. So long as no Default or Event of Default exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrower’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date the Borrower or any Restricted Company incurs or issues Subsidiary shall issue any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 new Ownership Interests (other than Refinancing Excluded Equity Issuances) or incur or assume any Indebtedness which shall be treated in accordance with other than that permitted by Section 2.19)6.11, the Borrower shall cause to be prepaid an aggregate principal amount promptly notify the Administrative Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received therefrom on by or prior to for the date which is five Business Days after account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) Within ten If at any time the sum of the unpaid principal balance of the Revolving Loans and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrowers shall immediately upon notice (and, in any event, within one (1) Business Days after financial statements have been or are required Day of such notice) pay over the amount of the excess to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be delivered pursuant applied to Section 6.01(a) and the related Compliance Certificate has been or is required Revolving Loans until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be delivered pursuant held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to Section 6.02(a), commencing with the first full Fiscal Year ending Letters of Credit.
(iv) If after the Closing DateDate the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall cause promptly notify the Subject Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full, and then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) Within 120 days after the end of each fiscal year, the Borrower shall prepay the then-outstanding Loans by an amount equal to the Applicable ECF Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower, minus the sum of (1) all voluntary prepayments of Term Loans made during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due, (2) all voluntary prepayments of Revolving Loans during such fiscal year or after year-end and prior to when such Excess Cash Flow prepayment is due to the extent the Revolving Credit Commitments are permanently reduced by the amount of such payments, in the case of each of the immediately preceding clauses (1) and (2), (x) to the extent such prepayments are funded with internally generated cash and (y) excluding any such voluntary prepayments made during such fiscal year that reduced the amount required to be prepaid pursuant to this Section 2.8(b)(v) in an the prior fiscal year, and (3) all mandatory prepayments made pursuant to Section 2.8(b)(ix).
(vi) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Revolving Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(vii) Upon the “ECF Prepayment Amount”)occurrence of a Change of Control, concurrently with the closing of any such transaction, at the election of the Administrative Agent and the Required Lenders, the Borrower shall (A) repay the Loans in full by payment of the outstanding principal of and the accrued interest on all outstanding Loans, together with all other amounts payable under the Loan Documents and (B) Cash Collateralize 105% of the then outstanding amount of all L/C Obligations.
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of Prime Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 8.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.5.
(ix) Upon the Borrower or any Subsidiary’s receipt of Net Claim Proceeds from the Legacy Claims, the Borrower shall promptly prepay any then-outstanding Term Loan Obligations by an amount equal to the Net Claim Proceeds received from such Legacy Claim; provided, however, in no event will the prepayments under this Section 2.8(b)(ix) when combined with prepayments under Section 2.8(b)(v) exceed $6,000,000 in the aggregate during the term of this Agreement.
Appears in 1 contract
Mandatory. (i) (A) If (1) Subject to the terms of the Senior Subordination Agreement, if the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) shall suffer an Event of Loss with respect to any Casualty Event occurs, Property which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as 110,000 individually or $220,000 on a cumulative basis in any fiscal year of the last day Borrower, then (x) the Borrower shall promptly notify the Agent of such proposed Disposition or Event of Loss (including the amount of the most recently ended Test Period estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the “De Minimis Borrower or the Subsidiary of the Net Cash Proceeds Threshold”) in any Fiscal Yearof such Disposition or such Event of Loss, the Borrower shall cause prepay the Obligations in an aggregate amount equal to be prepaid on or prior to the date which is ten Business Days after the date 100% of the realization or receipt amount of all such Net Cash Proceeds an aggregate principal amount in excess of Initial Term Loans $110,000 individually or $220,000 on a cumulative basis in any fiscal year of the Borrower; provided that in the case of each Disposition and any Additional Term Loans then subject Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to ratable prepayment requirements invest or reinvest, as applicable, within one hundred eighty (180) days of the “Subject Loans”) in an amount equal to Required Net Proceed Percentage applicable Disposition or receipt of all Net Cash Proceeds received in excess from an Event of the De Minimis Proceeds Threshold (collectivelyLoss, the “Subject Proceeds”); providedNet Cash Proceeds thereof in assets used or useful in the business, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and then so long as no Default or Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveexists, the Borrower shall not be required to subsequently offer make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice within such one hundred eighty (180) day period. Promptly after the end of such one hundred eighty (180) day period, the Borrower shall notify the Agent whether the Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrower’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $110,000 individually or $220,000 on a cumulative basis in any fiscal year of the relevant declined prepayment to any Term Lender Borrower not so invested or any holder of Other Applicable Indebtednessreinvested.
(ii) If Subject to the terms of the Senior Subordination Agreement, if after the Closing Date the Borrower or any Restricted Company incurs or issues Subsidiary shall issue any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 new Ownership Interests (other than Refinancing Excluded Equity Issuances) or incur or assume any Indebtedness which shall be treated in accordance with other than that permitted by Section 2.19)6.11, the Borrower shall cause to be prepaid an aggregate principal amount promptly notify the Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds of such issuance, incurrence or assumption to be received therefrom on by or prior to for the date which is five Business Days after account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, incurrence or assumption the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(iii) Within ten Business Days after financial statements have been or are required [Reserved].
(iv) Subject to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a)terms of the Senior Subordination Agreement, commencing with the first full Fiscal Year ending if after the Closing DateDate the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall cause promptly notify the Subject Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in the amount of such Net Cash Proceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) Upon the occurrence of a Change of Control, concurrently with the closing of any such transaction, at the election of the Required Lenders, Borrower shall repay the Loans in full by payment of the outstanding principal balance of the Loans, plus (1) the applicable Prepayment Premium, if any, (2) all unpaid interest accrued thereon through the date repayment and (3) all outstanding and unpaid fees and expenses payable to the Lenders under this Agreement and the other Loan Documents through the date of repayment.
(vi) [Reserved].
(vii) Except as otherwise set forth in Section 2.8(b)(v), each prepayment of Loans under this Section 2.8(b) shall be made by the payment of (x) first, the Original Principal to be prepaid and cash interest accrued thereon to the date of prepayment until paid in an aggregate principal amount full and, second, the Deferred Interest Principal and cash interest accrued thereon to the date of prepayment plus (y) the “ECF applicable Prepayment Amount”)Premium, if any.
Appears in 1 contract
Mandatory. (i) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of 95007615_1 the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that, at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or rescission) (the “Reinvestment End Date”), then such remaining portion shall be required to prepay the Term Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$100.0 million and 5.0% of Total Assets.
(ii) [Reserved].
(iii) If (A) prior to the SPV Structure Termination Date, any Loan Party or any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the 2021 Amendment Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 4.09 of Annex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such Loan Party or member of the Restricted Group, as applicable, of such net cash proceeds and (other than B) on or after the SPV Structure Termination Date, any member of the Restricted Group Incurs or issues any Indebtedness after the 2021 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Annex IV, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on a date that is five Business Days from receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Indebtedness which shall be treated Term Loans resulting in accordance with Section 2.19net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), the such Borrower shall 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 on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any 95007615_1 time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans, (B) 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 Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans without at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or 95007615_1 other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash Proceedsso 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by a Borrower) with respect to 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 member of the Restricted Group.
(iiiix) Within ten Upon becoming aware of a Change of Control:
(A) the Company or any Permitted Affiliate Parent 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 after financial statements have been or are required Days’ notice to be delivered pursuant to Section 6.01(a) the applicable Borrower, cancel each Facility, and the related Compliance Certificate has been or is required to Commitments thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occursThe Borrower shall, which on the 90th day following the end of each Fiscal Year commencing with the 2002 Fiscal Year, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the aggregate results in the realization or receipt by any Restricted Company amount of Net Excess Cash Proceeds Flow in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any 5,000,000 for such Fiscal Year.
(ii) The Borrower shall, the Borrower shall cause to be prepaid on or prior to the date which is ten within two Business Days after the date of the realization or receipt of such the Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, by the Borrower shall have given written notice to the Administrative Agent or any of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
Subsidiaries from (A) With respect to the sale, lease, transfer or other disposition of any Subject Proceeds realized or received with respect to any Prepayment Asset Sale assets of the Borrower or any Casualty Event required of its Subsidiaries (other than leases in the ordinary course of business or any sale, lease, transfer or other disposition of assets pursuant to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(Aclause (i), at the option of the Borrower(ii), and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (xiv) 15 months following receipt of such Subject Proceeds or (yv) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
5.02(e)) and (B) [Reserved].
(C) Ifany Extraordinary Receipt received by, at or paid to, or for the time that any such prepayment would be required hereunderaccount of, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described and not otherwise included in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2A) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans the Advances comprising part of the same Borrowings in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt amount of such Net Cash Proceeds.
(iii) Within ten The Borrower shall, within two Business Days after financial statements the date of receipt, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to 33.33% of the proceeds received on account of any offering of any Equity Interests of the Parent or any other Loan Party on or after September 30, 2004, except for Equity Interests consisting of any (x) Reorganization Securities, (y) common stock of the Parent, the proceeds of the issuance and sale of which are applied to refinance the Series A Preferred Stock at not more than 100% of liquidation value plus accrued dividends, or (z) Equity Plan Securities.
(iv) The Borrower shall, within two Business Days after the date of receipt (or if later, within two Business Days after the Amendment Effective Date), prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the Net Advance Payments received by the Borrower under indefeasible right to use agreements relating to excess raised floor space at the e-deltacom facility located in Suwanee, Georgia, which are entered into by the Borrower after August 22, 2002; provided, that until NTFC and GECC have been or are required to be delivered pursuant to Section 6.01(a) received payment of an aggregate of $6,000,000 under the NTFC Capital Lease and the related Compliance Certificate has been or is required to be delivered pursuant to GECC Capital Lease, as contemplated under Section 6.02(a), commencing with 1(a)(ii) of the first full Fiscal Year ending after the Closing DateCapital Lease Amendment, the Borrower shall cause prepay to the Subject Loans to be prepaid in Lenders only 75% of the amount of such Net Advance Payments.
(v) The Borrower shall, within 60 days after the date of the applicable Financial Covenants Certificate, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount equal to the amount by which the actual Capital Expenditures set forth therein exceeds the maximum Capital Expenditures for such period, as set forth in Section 5.02(q)(i).
(vi) The Borrower shall, within 60 days after the “ECF Prepayment Amount”date of the applicable Financial Covenants Certificate, prepay an aggregate principal amount of the Advances comprising part of the same Borrowings in an amount necessary to reduce the amount of Senior Debt so that the Senior Debt Ratio no longer exceeds the Senior Debt Ratio for the applicable period, as set forth in Section 5.02(q)(ii).
(vii) All prepayments under this subsection (b) shall be made together with accrued interest to the date of such prepayment on the principal amount prepaid and shall be applied ratably to each Facility and to the installments thereof on a pro rata basis.
Appears in 1 contract
Samples: Credit Agreement (Itc Deltacom 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 U.S. Borrower shall prepay an aggregate principal amount of Term B Loans equal to the excess (if any) of (A) 50% of Excess Cash Flow (provided that such percentage shall be reduced to zero 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 (provided that the first such payment shall be due after the fiscal year ending closest to December 31, 2008) 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 Subsidiaries (1x) Disposes of any Restricted Company consummates property in a Prepayment Disposition constituting an Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds, (y) receives Net Cash Proceeds of casualty insurance or condemnation awards (or from payments in lieu thereof) in excess of $1,000,000 from a single event or group of related occurrences (excluding for purposes of this clause (y) any Net Cash Proceeds from “Recoveries” (as defined in the greater of $20,000,000 AWA Environmental Indemnity Agreement and 15.5% of Consolidated EBITDA as the API Environmental Indemnity Agreement), which must be paid to AWA under the terms of the last day of the most recently ended Test Period applicable Fox River Indemnity Arrangements) or (the “De Minimis Proceeds Threshold”z) in incurs or issues any Fiscal YearIndebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the U.S. Borrower shall cause prepay an aggregate principal amount of Term B Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess within five Business Days of the De Minimis Proceeds Threshold receipt thereof by such Person (collectively, the “Subject Proceeds”such prepayments to be applied as set forth in clause (iii) below); provided, that no such prepayment shall however, that, with respect to any Net Cash Proceeds otherwise required to be required pursuant to applied under preceding clauses (x) and (y) above in this Section 2.06(b)(i)(A) if2.05(b)(ii), on or prior to such date, at the election of the U.S. Borrower shall have given written notice (as notified by the U.S. Borrower to the Administrative Agent (of its intention intent to reinvest all or a portion reinvest) within five Business Days of the date of such Subject Proceeds in accordance with Section 2.06(b)(i)(BDisposition).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuingcontinuing at the time of such election, the Borrower such Loan Party or such Subsidiary may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be in operating assets so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, long as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days 365 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated; and provided further, however, that any Net Cash Proceeds not so reinvested shall be immediately applied (on such 365th day or, if sooner, to the extent the U.S. Borrower makes an earlier determination that such funds will not be so invested) to the prepayment of the Term B Loans as set forth in this Section 2.05(b)(ii).
(iii) Within ten Business Days after financial statements Each prepayment of Term B Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied to the remaining principal repayment installments of the Term B Facility as directed by the U.S. Borrower.
(iv) Notwithstanding the provisions of clause (ii) of this Section 2.05(b), so long as no Event of Default shall have been occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (ii) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Term B Loans on such date is less than or equal to $2,000,000, the 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 delivered pursuant applied to prepay Loans under this Section 6.01(a2.05(b) and the related Compliance Certificate has been or is required (without giving effect to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after and second sentences of this clause (iv)) but which have not previously been so applied.
(v) If for any reason the Closing DateTotal Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the U.S. Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(vi) Prepayments of the “ECF Prepayment Amount”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. 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 U.S. Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
(vii) If the Administrative Agent notifies the Borrowers 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 Alternative Currency Sublimit then in effect, then, within five (5) 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 Alternative Currency Sublimit then in effect.
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates a Prepayment Asset Sale or of its Subsidiaries Disposes of any property (2) any Casualty Event occurs, which other than the sale of inventory in the aggregate ordinary course of business, the Disposition of Cash Equivalents, or the Disposition of any assets by the Borrower or a Subsidiary to the Borrower or a Subsidiary) which results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower or such Subsidiary shall cause prepay an aggregate principal amount of Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (vi) and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”ix) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”below); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifhowever, on or prior to such datethat, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and Net Cash Proceeds realized so long as no Default or Event of Default shall have occurred and be continuing, the Borrower Borrower, at its election, or such Subsidiary, may reinvest all or any portion of such Subject Net Cash Proceeds from (i) sales of obsolete or worn out equipment no longer used or useful in the operation of the business of the Restricted Companies within Borrower and its Subsidiaries, or (xii) 15 months following receipt sales of assets with a fair market value not in excess of $2,000,000, in the aggregate, in any calendar year, provided that the Borrower may retain up to $750,000 of such Subject Proceeds or (y) if annual aggregate amount and all amounts between $750,001 and $2,000,000 may be reinvested in operating assets so long as within 180 days after the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such reinvestment shall have been consummated or which reinvestment is subject to a binding written agreement with a third party which is not an Affiliate of Borrower which agreement was entered into during such 180-day time period and which reinvestment is consummated within 60 days after such 180-day period expires (as certified by the Borrower in writing to the Administrative Agent upon request); providedand provided further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.06.
2.05(b)(iv); or (B2) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is are required to repay or make a prepayment any First Lien Debt of the type described Loans from the proceeds of insurance as provided in clause (bSection 3(d) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessSecurity Agreements.
(ii) If Upon the sale or issuance by the Borrower of any Restricted Company incurs of its Equity Interests, the Borrower shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or issues such Subsidiary (such prepayments to be applied as set forth in clauses (vi) below).
(iii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness not (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.02), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or prior such Subsidiary (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clauses (vi) below).
(iiiiv) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to the foregoing provisions of this Section 6.01(a2.05(b) shall be applied, first, to the Term Facility and to the related Compliance Certificate respective principal repayment installments thereof in inverse order of maturity second, after the Term Facility had been paid in full, to the Accordion Facility and to the respective principal repayment installments thereof in inverse order of maturity and, after the Accordion Facility has been or is required paid in full, third, to be delivered pursuant to the Revolving Credit Facility in the manner set forth in clause (vi) of this Section 6.02(a2.05(b), commencing with .
(v) If for any reason the first full Fiscal Year ending after Total Revolving Credit Outstandings at any time exceed the Closing DateRevolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(vi) Prepayments of the “ECF Prepayment Amount”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, if a Default or Event of Default has occurred shall be used 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. (i) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower relevant Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance), ); provided that at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, however, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$200,000,000 and 3.0% of Total Assets.
(ii) 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 was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the Amendment Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)4.09 of Annex II, the Borrower Borrowers shall 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 on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such Net Cash Proceedsnet cash proceeds.
(iiiv) Within ten Business Days after financial statements have been or are If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C 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 relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 6.01(a2.05(b)(vii), to any Class or Classes of Term Loans, (B) 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 related Compliance Certificate has been Appropriate Lenders in accordance with their respective Pro Rata Share (or is other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, 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 of Term Loans required to be delivered made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 6.02(a)3.10, commencing with such Borrower may rescind (or delay the first full Fiscal Year ending 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, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 Closing Date, date of such Lender’s receipt of notice from the Borrower Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall cause specify the Subject principal amount of the mandatory repayment of Term Loans to be prepaid in an aggregate 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the “ECF Prepayment Amount”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 a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to 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 member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or 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 the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Mandatory. (ia) Prior to the Interim Bridge Loan Maturity Date, if (Ax) If (1) the Borrower or any Restricted Company consummates a Prepayment Subsidiary makes an Asset Sale or (2y) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any the Borrower or such Restricted Company Subsidiary of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall prepay, or cause to be prepaid 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 Cash Proceeds Proceeds, subject to Section 2.03(2)(b) and clauses (2)(e) and (f) of this Section 2.03(2), an aggregate principal amount of Initial Term Interim Bridge Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)realized or received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.03(2)(a) ifwith respect to such portion of such Net Proceeds that the Borrower shall have, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention intent to reinvest all (or entered into a portion of such Subject Proceeds binding commitment to reinvest) in accordance with Section 2.06(b)(i)(B2.03(2)(b).; provided further that
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (yi) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the Borrower (or any of its Restricted Subsidiaries Subsidiary) is required to repay or prepayment Discharge any First Lien Debt Other Applicable Indebtedness with Other Applicable Net Proceeds pursuant to the terms of the type described in clause (b) of the definition thereof (documentation governing such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrower (or any Restricted Subsidiary) may apply such Net Proceeds otherwise required to repay the Subject Proceeds Interim Bridge Loans pursuant to this Section 2.03(2)(a) on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Interim Bridge Loans and the Other Applicable Indebtedness (or accreted amount if requiring such Other Applicable Indebtedness is issued with original issue discount) Discharge at such time); it being understood , to the prepayment of the Interim Bridge Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Interim Bridge Loans that would have otherwise been required pursuant to this Section 2.03(2)(a) shall be reduced accordingly (1) provided that the portion of the Subject such Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject such Other Applicable Net Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (thereof and the remaining amount, if any, of the Subject such portion of Net Proceeds shall be allocated to the Subject Interim Bridge Loans to the extent required in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and 2.03(2)(a)); and
(2ii) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness repurchased or prepaid or repurchasedwith 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 rejection) be applied to prepay the Subject Interim Bridge Loans to the extent required in accordance with the terms hereof of this Section 2.03(2)(a).
(b) With respect to any Net Proceeds realized or received with respect to any Asset Sale or any Casualty Event, the Borrower or any Restricted Subsidiary, at its option, may reinvest all or any portion of such Net Proceeds in assets useful for their business within (x) eighteen (18) months following receipt of such Net Proceeds or (y) if the Borrower or any Restricted Subsidiary enters into a legally binding commitment 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; provided that if any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis Net Proceeds are no longer intended to be or cannot be so reinvested at any time after such reinvestment election, and subject to clauses (determined in a manner consistent with e) and (f) of this Section 2.03(2), an amount equal to any such Net Proceeds shall be applied within five (5) Business Days after the Borrower reasonably determines that such Net Proceeds are no longer intended to be or cannot be so reinvested to the prepayment of the Interim Bridge Loans as set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessSection 2.03.
(iic) If Prior to the Interim Bridge Loan Maturity Date, if the Borrower or any Restricted Company Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19)7.02, the Borrower shall prepay, or cause to be prepaid prepaid, an aggregate principal amount of Term Interim Bridge Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Restricted Subsidiary of such Net Cash Proceeds.
(iii) Within ten . Prior to the Interim Bridge Loan Maturity Date, no later than three Business Days after financial statements have been following the receipt of any Net Proceeds of any public issuance of Equity Interests or are required equity contribution to be delivered the Borrower (other than equity contributed pursuant to Section 6.01(a) and employee stock plans, or equity issued to fund the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(aTransactions), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause make prepayments of the Subject Interim Bridge Loans to be prepaid in an aggregate principal amount equal to 100% of such Net Proceeds.
(d) Not later than three Business Days following the receipt of any Net Proceeds from the issuance of any Permanent Notes or any sale or issuance of any other Indebtedness issued or borrowed to refinance the Interim Bridge Loans pursuant to a Permanent Securities Notice, the Borrower shall make prepayments in an aggregate principal amount equal to 100% of such Net Proceeds received by the Borrower or any of its Subsidiaries.
(e) Notwithstanding any term of this Agreement, no prepayment of Loans (except in the event Permanent Notes are issued) will be required pursuant to clauses (a) or (b) above to the extent that any such Net Proceeds are required to be applied (and are actually so applied) in prepayment of amounts outstanding under the Senior Credit Facilities.
(f) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Loans required to be made pursuant to clauses (a) through (c) of this Section 2.03(2) at least three (3) Business Days prior to the date of such prepayment (provided that, in the case of clause (c) of this Section 2.03(2), the 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 Loans 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 by the Borrower. 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.
(g) Notwithstanding any other provisions of this Section 2.03(2), (A) to the extent that any or all of the Net Proceeds of any Asset Sale by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.03(2)(a) (a “Foreign Asset Sale”) or the Net Proceeds of any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local law from being repatriated to the United States, an amount equal to the portion of such Net Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.03(2) so long, but only so long, as the applicable local law will not permit repatriation to the United States (the “ECF Prepayment Amount”Borrower hereby agreeing to cause the applicable Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Proceeds is permitted under the applicable local law, an amount equal to such Net Proceeds permitted to be repatriated will be promptly (and in any event not later than two (2) Business Days after any such repatriation) applied (net of additional taxes that are or would be payable or reserved against as a result thereof) to the repayment of the Loans pursuant to this Section 2.03(2) to the extent otherwise provided herein and (B) to the extent that the Borrower has determined in good faith that repatriation of any of or all the Net Proceeds of any Foreign Asset Sale or Foreign Casualty Event would have a material adverse tax consequence (taking into account any foreign tax credit or benefit actually realized in connection with such repatriation) with respect to such Net Proceeds, an amount equal to the Net Proceeds so affected will not be required to be applied to repay Loans at the times provided in this Section 2.03(2).
(h) All prepayments under this Section 2.03 shall be accompanied by all accrued interest thereon, together with, in the case of any such prepayment of a LIBO Rate Loan on a date prior to the last day of an Interest Period therefor, any amounts owing in respect of such LIBO Rate Loan pursuant to Section 3.05.
(i) Notwithstanding any of the other provisions of this Section 2.03, so long as no Event of Default shall have occurred and be continuing, if any prepayment of LIBO Rate Loans is required to be made under this Section 2.03 prior to the last day of the Interest Period therefor, in lieu of making any payment pursuant to this Section 2.03 in respect of any such LIBO Rate Loan prior to the last day of the Interest Period therefor, the Borrower may, in its discretion, deposit an amount sufficient to make any such prepayment otherwise required to be made thereunder together with accrued interest to the last day of such Interest Period into a cash collateral account until the last day of such Interest Period, at which time the Administrative Agent shall be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of such Loans in accordance with this Section 2.03. Upon the occurrence and during the continuance of any Event of Default, the Administrative Agent shall also be authorized (without any further action by or notice to or from the Borrower or any other Loan Party) to apply such amount to the prepayment of the outstanding Loans in accordance with the relevant provisions of this Section 2.03. Such deposit shall be deemed to be a prepayment of such Loans by the Borrower for all purposes under this Agreement.
Appears in 1 contract
Samples: Bridge Credit Agreement (Superior Industries International Inc)
Mandatory. The Borrower shall make mandatory prepayments as follows:
(i) Within ten Business Days after financial statements for such Excess Cash Flow Period have been delivered pursuant to Section 6.01(a)(i) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), the Borrower shall make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to the product of the applicable Prepayment Percentage times the Excess Cash Flow for such Excess Cash Flow Period.
(Aii) If the Borrower or any of its Subsidiaries (1other than the Immaterial ACO Subsidiaries) Disposes of any Restricted Company consummates a Prepayment Asset Sale or (2) property, other than pursuant to any Casualty Event occursExcepted Disposition, which in and the aggregate results or individual Dispositions result in the realization or receipt by any Restricted Company such Persons of Net Cash Proceeds in excess of the greater of exceeding $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year10 million, the Borrower shall cause make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to be prepaid 100% of all such Net Cash Proceeds within five Business Days after receipt thereof by such Person; 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 Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Disposition); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in assets useful in the business of the Restricted Companies within Borrower or its Subsidiaries so long as (x) 15 within 12 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements , the purchase shall have been or are required consummated (as certified by the Borrower in writing to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(aAdministrative Agent), commencing with the first full Fiscal Year ending or (y) within 12 months after the Closing Datereceipt of such Net Cash Proceeds, the Borrower or such Subsidiary shall cause have entered into a definitive agreement to reinvest such Net Cash Proceeds in assets useful in the Subject business of the Borrower or its Subsidiaries, and the purchase of such assets shall have been consummated within six months after the end of such 12 month period; and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be applied to the prepayment of the Loans to be prepaid as set forth in an aggregate principal amount (the “ECF Prepayment Amount”this Section 2.05(b)(ii).
Appears in 1 contract
Mandatory. (i) i. (A) If (1) any Restricted Company consummates a Prepayment Asset Sale Disposes of any property or assets pursuant to Section 7.05(l)(ii), 7.05(q), 7.05(s), 7.05(t) or 7.05(u) or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 5,000,000 in any Fiscal Yearfiscal year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Net Cash Proceeds in accordance with Section 2.06(b)(i)(B) (which election may only be made if no Event of Default has occurred and is then continuing).;
(A) 1. With respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale Disposition or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Net Cash Proceeds in the business acquisition, improvement or maintenance of assets useful in the operations of the Restricted Companies within (x) 15 12 months following receipt of such Subject Net Cash Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Net Cash Proceeds within such 15-12 month period following receipt thereof, 21 18 months following receipt of such Net Cash Proceeds; provided, provided that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-12 month period or 21-18 month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) . If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within . Commencing with the fiscal year ending December 31, 2016, within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount of the Initial Term Loans and any other Term Loans then subject to ratable prepayment requirements in accordance with Section 2.06(b)(iv) in an amount equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year covered by such financial statements minus (B) the sum of (1) the amount of any prepayments of the Term Loans made pursuant to Section 2.06(a) during the fiscal year covered by such financial statements and (2) solely to the extent the Revolving Credit Commitments are reduced pursuant to Section 2.07(a) in connection therewith (and solely to the extent of the amount of such reduction), the amount of any prepayments of the Revolving Credit Loans made pursuant to Section 2.06(a) during the fiscal year covered by such financial statements, in the case of each of clause (1) and clause (2), except to the extent such prepayments were financed with the proceeds of long-term Indebtedness; provided that such percentage shall be reduced to (x) 25% if the First Lien Leverage Ratio as of the end of such fiscal year was equal to or less than 3.25:1.00 and greater than 3.00:1.00 and (y) 0% if the First Lien Leverage Ratio as of the end of such fiscal year was equal to or less than 3.00:1.00.
iv. Except as otherwise provided in any Commitment Increase and Joinder Agreement, Refinancing Amendment or Extension Amendment, in each case with respect to the Term Loans covered thereby, each prepayment of Term Loans pursuant to this Section 2.06(b) shall be applied ratably to each Tranche of the Term Loans and in direct order of maturities to the principal repayment installments of the Term Loans that are due after the date of such prepayment. Each such prepayment shall be paid to the Term Lenders in accordance with their respective Pro Rata Shares.
v. The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.06(b) at least (A) in the case of the prepayment of Term Loans which are Base Rate Loans, one Business Day and (B) in the case of prepayments of Term Loans which are Eurodollar Rate 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. [Reserved.]
vii. [Reserved.]
viii. Notwithstanding any other provisions of Section 2.06(b), to the extent any or all of the Net Cash Proceeds of any Disposition of property or assets by a Foreign Subsidiary (a “Foreign Asset Sale”), the Net Cash Proceeds of any Casualty Event received by a Foreign Subsidiary (a “Foreign Recovery Event”), or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by any applicable Law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group, and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated to or passed on to or used for the benefit of the Borrower, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to prepay the Term Loans at the times provided in Section 2.06(b) but may be retained by the applicable Foreign Subsidiary so long, but only so long, as the applicable Law will not permit repatriation or the passing on to or otherwise using for the benefit of the Borrower (the Borrower hereby agreeing to use (or cause the applicable Foreign Subsidiary to use) all commercially reasonable efforts 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 affected Net Cash Proceeds 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 Term Loans pursuant to Section 2.06(b);
ix. Notwithstanding the foregoing, each Term Lender shall have the right to reject its applicable percentage of any mandatory prepayment of the Term Loans pursuant to this Section 2.06(b) (each such Lender, a “ECF Prepayment AmountRejecting 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”).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Mandatory. (i) If the Borrower or any of its Subsidiaries Disposes of any property (Aincluding any Disposition made under Section 7.05(f) If (1but excluding any other Disposition permitted under Section 7.05) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of $10,000,000 in the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) aggregate for all such Dispositions in any Fiscal Yearfiscal year, the Borrower shall cause prepay an aggregate principal amount of Term Loans equal to the lesser of (A) 100% of such Net Cash Proceeds and (B) the aggregate outstanding amount of all Term Loans immediately upon receipt thereof by such Person (such prepayments to be prepaid on or prior applied as set forth in clause (iii) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b), at the election of the Borrower (as notified by the Borrower to the date which is ten Administrative Agent within five Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in useful assets in the business of so long as within eighteen (18) months after the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds Net Cash Proceeds, such reinvestment shall have been consummated or a written commitment therefor shall have been signed (y) if in either case, as reported in a notice provided by the Borrower enters into a contract in writing to reinvest the Administrative Agent); provided further, however, in the case of written commitment to invest such Subject Net Cash Proceeds within eighteen (18) months after the receipt of such 15Net Cash Proceeds, such reinvestment shall be consummated within twenty-month period following receipt thereof, 21 four (24) months following after the receipt of such Net Cash Proceeds; providedprovided further, however, that if any Net Cash Proceeds are no longer intended not subject to be so reinvested at any time after delivery of a notice of reinvestment election such written commitment or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be promptly applied to the prepayment of the Term Loans as set forth in this Section 2.062.05(b)(i).
(Bii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to the lessor of (A) 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or prior such Subsidiary and (B) the aggregate outstanding amount of all Term Loans (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clause (iii) below).
(iii) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to Section 6.01(athe foregoing subclauses (i) and (ii) of this Section 2.05(b) shall be applied to the related Compliance Certificate has been or is required Term Facility pro rata with respect to be delivered pursuant the next eight (8) scheduled principal repayment installments following such date of prepayment for which any scheduled payment amount in excess of zero remains unpaid as of such date and thereafter on a pro rata basis. Subject to Section 6.02(a)2.15, commencing such prepayments shall be paid to the Term Lenders in accordance with their respective Applicable Percentages in respect of the first full Fiscal Year ending after Term Facility.
(iv) If for any reason the Closing DateTotal Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations in an aggregate principal 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)(iv) unless, after the prepayment of the Revolving Credit Loans and Swing Line Loans, the Total Revolving Credit Outstandings exceed the Revolving Credit Facility at such time.
(v) Except as otherwise provided in Section 2.15, prepayments of the “ECF Prepayment Amount”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. 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 Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Integra Lifesciences Holdings Corp)
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, No later than the Business Day occurring immediately after the day on which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to receives proceeds from the date which is ten Business Days after the date sale (including a liquidating dividend) of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Investment permitted under Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness7.14(k), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer make a mandatory prepayment of the Revolving Loans in the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtednesssuch proceeds.
(ii) If on any Restricted Company incurs March 31, June 30, September 30 or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 December 31 occurring after the date hereof the sum of (other than Refinancing Indebtedness which shall be treated i) the U.S. Dollar Equivalent of all outstanding Revolving Loans hereunder, (ii) the aggregate Original Dollar Amount of all outstanding Swingline Loans hereunder, and (iii) the L/C Obligations exceeds the Revolving Commitments as then in accordance with Section 2.19)effect, the Borrower shall cause immediately prepay Revolving Loans in an aggregate amount such that after giving effect thereto the sum of (i) the U.S. Dollar Equivalent of all outstanding Revolving Loans hereunder, (ii) the aggregate Original Dollar Amount of all outstanding Swingline Loans hereunder, and (iii) the outstanding L/C Obligations is less than or equal to the Revolving Commitments as then in effect.
(iii) To the extent Term Loans remain outstanding, if after the Effective Date the Borrower or any Subsidiary shall issue new equity securities (whether common or preferred stock or otherwise), other than equity securities issued in connection with the Borrower's Stock Compensation Program, Employee Stock Purchase Plan, Stock Award and Incentive Plan and any similar programs or plans, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be prepaid an aggregate principal amount received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon, and in no event later than the Business Day after, receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt amount of such Net Cash Proceeds.
(iiiiv) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and To the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a)extent Term Loans remain outstanding, commencing with the first full Fiscal Year ending if after the Closing DateEffective Date the Borrower or any Subsidiary shall issue any indebtedness for borrowed money (other than short-term working capital facilities in local currencies), the Borrower shall cause promptly notify the Subject Loans Administrative Agent of the estimated Net Cash Proceeds of such issuance to be prepaid received by or for the account of the Borrower or such Subsidiary in respect thereof. Promptly upon, and in no event later than the Business Day after, receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Term Loans in an aggregate principal amount equal to 100% of the amount of such Net Cash Proceeds.
(v) To the “ECF Prepayment Amount”)extent Term Loans remain outstanding, the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition, then the Borrower shall promptly notify the Administrative Agent of such proposed Disposition (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon, and in no event later than the Business Day after, receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition, the Borrower shall prepay the Term Loans in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
Mandatory. (i) (A) If (1) for any Restricted Company consummates a Prepayment Asset Sale or (2) reason the Total Outstandings at any Casualty Event occurs, which time exceed the Aggregate Commitments then in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Yeareffect, the Borrower shall cause to be prepaid on or prior to immediately prepay Loans and/or Cash Collateralize the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds L/C Obligations in an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 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) Upon completion of (i) any early termination of any Hedge Transaction used in determining the Borrowing Base on the immediately preceding Determination Date or (ii) the Disposition of any assets included in the Borrowing Base on the immediately preceding Determination Date, the effect of which termination or Disposition would be a reduction in the Borrowing Base then in effect of 10.0% or more on a pro forma basis, the Borrowing Base shall immediately and automatically upon consummation of such transaction be reduced by the Borrowing Base contribution of such Hedge Transaction or assets, and all Net Cash Proceeds received in excess from the termination of such Hedge Transaction or the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no Disposition of such prepayment assets shall be required pursuant applied to this Section 2.06(b)(i)(A) if, on reduce or prior to eliminate any Borrowing Base Deficiency resulting from such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B)reduction.
(Aiii) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ATo the extent not covered by (ii), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay Disposes of any property under Section 7.05(g) or prepayment any First Lien Debt suffers a Casualty Event which results in the realization by such Person of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveNet Cash Proceeds, the Borrower shall use the Net Cash Proceeds to eliminate any Borrowing Base Deficiency resulting from such sale; provided that, the proceeds of any Disposition permitted by Section 7.05(g) shall not be required constitute Net Cash Proceeds to subsequently offer the amount extent that (A) such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Restricted Subsidiary of a kind then used or usable in the business of the relevant declined prepayment applicable Person (with equal or greater aggregate Attributed Value) within 180 days from the date of receipt thereof or (B) if the applicable Borrower or Restricted Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such proceeds as part of a like-kind exchange under Section 1031 of the Code, the potential replacement properties or assets are identified by such Borrower or Restricted Subsidiary within 180 days from the date the ownership to the sold 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; provided further that, the proceeds of any Term Lender Casualty Event shall not constitute Net Cash Proceeds to the extent that such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Guarantor (other than Lariat, except that any holder proceeds of Other Applicable Indebtednessany Casualty Event suffered by Lariat shall not constitute Net Cash Proceeds to the extent that such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by Lariat, the Borrower or a Guarantor) of a kind then used or usable in the business of the applicable Person (with equal or greater aggregate Attributed Value) within 180 days from the date of receipt thereof.
(iiiv) If Upon the incurrence or issuance by the Borrower or any of its Restricted Company incurs or issues Subsidiaries of any Indebtedness not (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
Restricted Subsidiary (iii) Within ten Business Days after financial statements have been or are required such prepayments to be delivered pursuant to Section 6.01(aapplied as set forth in clause (v) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(abelow), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”).
Appears in 1 contract
Mandatory. (i) If (A) If (1the Company or any of its Subsidiaries Disposes of any Collateral other than Dispositions under Section 7.24(ii) or Section 7.24(iii) or any Disposition of Equity Interests in Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occursSubsidiaries that hold only Excluded Assets, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of $1,000,000 or (B) the greater Company or any of its Restricted Subsidiaries suffers an Event of Loss which results in the realization by such Person of Net Cash Proceeds in excess of $20,000,000 and 15.51,000,000, the Company shall in each case prepay, within three Business Days after receipt thereof by such Person, an aggregate principal amount of Loans equal to 100% of Consolidated EBITDA as such Net Cash Proceeds; provided that (x) with respect to all or a portion of any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i)(A), at the election of the last day of Company (as notified by the most recently ended Test Period (Company to the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid Administrative Agent on or prior to the date which is ten such third Business Days after the date of the realization or Day following receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage Dispositions of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”Collateral); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower Company or such Subsidiary may reinvest Net Cash Proceeds arising from any Disposition of Fuse Network Assets or Equity Interests in a Person, all or any portion material assets of which constitute Fuse Network Assets, plus up to $75,000,000 in the aggregate of other Net Cash Proceeds, in operating assets which constitute Collateral within 180 days after the receipt of such Subject Net Cash Proceeds and (y) with respect to any Net Cash Proceeds of casualty insurance or condemnation awards realized due to an Event of Loss described in this Section 2.05(b)(i)(B), at the business election of the Restricted Companies within Company (x) 15 months as notified by the Company to the Administrative Agent on or prior to such third Business Day following receipt of such Subject Net Cash Proceeds of casualty insurance or condemnation awards), and so long as no Default shall have occurred and be continuing, the Company or such Subsidiary may apply within 180 days (yor, if such replacement or repair could not reasonably completed within 180 days, such period shall be extended for a reasonable period of time to permit completion of such replacement and repair so long as the replacement or repair of the asset or assets that suffered the Event of Loss is being diligently pursued by the Company or such Subsidiary) if after the Borrower enters into receipt of such Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which such Net Cash Proceeds were received; and provided further, that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Loans.
(ii) If the Company Disposes of any Core Excluded Asset (other than where such Disposition is pursuant to a contract Tax Incentive Transfer) which results in the realization by the Company of Net Cash Proceeds, the Company shall prepay an aggregate principal amount of Loans equal to reinvest 50% of the portion of such Subject Net Cash Proceeds that is not reinvested in operating assets of the Company and its Restricted Subsidiaries within such 15-month period following receipt thereof, 21 months following 365 days after receipt of such Net Cash Proceeds; provided, provided that if any Net Cash Proceeds are no longer intended Default shall have occurred and be continuing, the Company shall not be permitted to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any reinvest such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06operating assets.
(Biii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower Company or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with permitted under clauses (i) and (iii) through (ix) of Section 2.197.14 and Permitted Financings), the Borrower Company shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to (x) 100% of all Net Cash Proceeds received therefrom on or prior to at any time that the date which Total Leverage Ratio is five Business Days after the receipt greater than 3.50:1.00, (y) 50% of such all Net Cash ProceedsProceeds received therefrom at any time that the Total Leverage Ratio is greater than 3.00:1.00 but less than or equal to 3.50:1.00, and (z) 0% of all Net Cash Proceeds received therefrom at any time that the Total Leverage Ratio is less than or equal to 3.00:1.00, in the case of clauses (y) and (z), provided that such Indebtedness was incurred in compliance with this Credit Agreement (otherwise such percentage shall be 100%).
(iiiiv) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and If for any reason the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with Total Outstandings at any time exceed the first full Fiscal Year ending after the Closing DateRevolving Credit Facility at such time, the Borrower Company shall cause immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Borrowings and/or Cash Collateralize the Subject Loans to be prepaid L/C Obligations (other than the L/C Borrowings) in an aggregate principal amount equal to such excess.
(v) 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 Loans pro rata to the Revolving Credit Facility and each Incremental Facility, if any, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments required pursuant to clause (i) 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 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 “ECF Prepayment Reduction Amount”) may be retained by the Company for use in the ordinary course of its business, and the Revolving Credit Facility and each Incremental Facility, if any shall be automatically and permanently reduced on a pro rata basis by the Reduction Amount as set forth in Section 2.06(b)(i). 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 Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable.
Appears in 1 contract
Mandatory. Subject, so long as the Exit Indebtedness is outstanding (or to the extent it, or any successor facility, has been Refinanced), to the terms of the Intercreditor Agreement:
(i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance Commencing with the terms hereof)fiscal year ending December 31, and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2020, within five (5) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after Borrower shall prepay an aggregate principal amount of Loans (such prepayments to be applied as set forth in clause (vi) below) equal to the Closing Datepositive amount (if any) rounded down to an integral of $100,000 of (A) 50% of Excess Cash Flow for the fiscal year covered by such financial statements minus (B) the aggregate principal amount of Loans prepaid pursuant to Section 2.04(a) during such period.
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property pursuant to Section 7.05(g), which results in the realization by such Person of Net Cash Proceeds, the Borrower shall cause the Subject Loans to be prepaid in prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds no later than the second Business Day following the receipt thereof by such Person (such prepayments to be applied as set forth in clause (vi) below); provided, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.04(b)(ii), at the “ECF Prepayment Amount”election of the Borrower, and so long as no Default or 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 operating assets (including, without limitation, Monitoring Contracts) so long as within 180 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated; provided, further that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.04(b)(ii)); provided, further, however, that such Net Cash Proceeds may not be so reinvested in excess of an aggregate amount equal to $50,000,000 in any fiscal year and $100,000,000 in the aggregate over the term of this Agreement.
(iii) 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), 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 clause (vi) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (ii) and (iii) of this Section 2.04(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom no later than the second Business Day following the receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below); provided, that, at the election of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply within 180 days after the receipt of such cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received; provided, further that any cash proceeds not so applied shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.04(b)(iv).
(v) At least one (1) Business Day prior to the prepayment of the Loans under this Section 2.04(b), the Borrower shall deliver to the Administrative Agent a written notice specifying the date of such prepayment and the amount thereof.
(vi) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.04(b) shall be applied to the principal repayment installments thereof in the direct order of maturity. Notwithstanding any of the other provisions of clauses (ii), (iii) or (iv) of this Section 2.04(b), so long as no Default 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 clauses (ii), (iii) or (iv) of this Section 2.04(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clauses (ii), (iii) or (iv) of this Section 2.04(b) to be applied to prepay Loans exceeds $3,000,000. Upon the occurrence of a Default during any such deferral period, following delivery of a written request by the Administrative Agent, 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 2.04(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not previously been so applied.
(vii) Notwithstanding anything in this Section 2.04(b) to the contrary, until the Discharge of First Lien Obligations that are Exit Agreement Obligations (each as defined in the Intercreditor Agreement), no mandatory prepayment of outstanding Loans that would otherwise be required to be made under this Section 2.04(b) shall be required to be made, except with respect to the portion (if any) of the proceeds of any event giving rise to any mandatory prepayment under Section 2.04(b) of the Exit Facilities Credit Agreement that have been rejected by the lenders thereunder in accordance with Section 2.04(b)(ix) of the Exit Facilities Credit Agreement.
Appears in 1 contract
Mandatory. (i) If Holdings, the Borrower or any of their respective Restricted Subsidiaries Disposes of any property or any Casualty or Condemnation occurs with respect to any of their property (Aother than any Disposition of, or Casualty or Condemnation with respect to, any ABL Priority Collateral) If pursuant to Section 7.05(xii), (1xvi), (xvii), (xix) any Restricted Company consummates a Prepayment Asset Sale or (2xxi) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of aggregate Net Cash Proceeds in excess of the greater (x) $10,000,000 for a single event or series of related events or (y) $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 25,000,000 in any Fiscal Yearfiscal year, the Borrower shall cause prepay an aggregate principal amount of Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject within three Business Days after receipt thereof by such Person (such prepayments to ratable prepayment requirements be applied as set forth in clause (the “Subject Loans”iii) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”below); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifhowever, on or prior to such datethat, at the election of the Borrower shall have given written notice (as notified by the Borrower in writing to the Administrative Agent of its intention to reinvest all upon such Disposition or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(BCasualty or Condemnation).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Default or Event of Default shall have occurred and be continuingcontinuing or would result therefrom, Holdings, the Borrower or such Restricted Subsidiary, as applicable, may reinvest all or any portion of such Subject Net Cash Proceeds in operating assets useful in their business so long as within 365 days after the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of such reinvestment election shall have been consummated or are not so reinvested during Holdings, the Borrower or such 15-month period or 21-month periodRestricted Subsidiary, as applicable, shall have entered into a binding agreement for such reinvestment (as certified by the Borrower in writing to the Administrative Agent); and provided further, however, that an amount equal to any such Net Cash Proceeds not so reinvested at the end of such 365-day period (or, if subject to such binding agreement at the end of such 365-day period, not so reinvested within 180 days after such 365-day period) shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.03(b)(i).
(Bii) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, If the Borrower or any of its Restricted Subsidiaries is required issues or incurs any Indebtedness (other than Indebtedness expressly permitted to repay or prepayment be incurred pursuant to Section 7.02 (except to the extent constituting a refinancing of any First Lien Debt Finance Obligations) and excluding proceeds of the type described in clause (b) of Indebtedness under the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable IndebtednessABL Credit Agreement), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis date of such issuance or incurrence, the Borrower shall prepay an aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion equal to 100% of the Subject Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance simultaneously with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten not later than the third Business Days after the date of such rejectionDay following) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of thereof by such Net Cash ProceedsPerson.
(iii) Within ten Prepayments of the Loans made pursuant to this Section 2.03(b) shall be applied to the principal repayment installments thereof as directed by the Borrower in writing (and in the absence of any direction, in direct order of maturity, to the remaining quarterly principal installments thereof). Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(iv) Any Lender may elect, by notice to the Administrative Agent by telephone (provided that any telephone notice must be confirmed immediately by delivery to the Administrative Agent of a notice by hand delivery or by electronic transmission) at least one (1) Business Days after financial statements Day prior to the required prepayment date, to decline all or any portion of any mandatory prepayment of its Loan pursuant to this Section 2.03(b), in which case the aggregate amount of the prepayment that would have been or are required applied to prepay the Loans but was so declined may be delivered pursuant to Section 6.01(a) and retained by the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)Borrower.
Appears in 1 contract
Mandatory. (i) (A) If (1) the Borrower or any Restricted Company consummates Subsidiary shall at any time or from time to time make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occursof Loss, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, then the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to promptly notify the Administrative Agent of its intention to reinvest all such Disposition or a portion Event of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
Loss (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at including the option amount of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any estimated Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, received by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described Subsidiary in clause (brespect thereof) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchasedand, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds, the Borrower shall prepay the relevant Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (y) received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate or received on account of Events of Loss during any Fiscal Year of the Borrower not exceeding $2,500,000 in the aggregate and (z) in the case of any Disposition or Event of Loss not covered by clause (y) above, so long as no Event of Default has occurred and is continuing, if the Borrower (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in assets that perform the same or similar function for the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets or (B) states in a notice delivered within 12 months of the receipt of such Net Cash Proceeds, that the Borrower or a Restricted Subsidiary has committed to reinvest such Net Cash Proceeds in assets that perform the same or similar function in the business of the Borrower or a Restricted Subsidiary, to the extent such Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 12-month or 18-month period, as applicable, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has reinvested such Net Cash Proceeds in such assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so reinvested. The amount of each such prepayment shall be applied to the relevant outstanding Term Loans in accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue or incur any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 hereof (including Indebtedness issued or incurred under Sections 1.16, 1.18 and 1.19 (but excluding Section 1.20 or any Indebtedness incurred as a Permitted Refinancing of all or a portion of existing Term Loans of any Class)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence. Within five Business Days after receipt thereof, 100% of such Net Cash Proceeds shall be applied by the Borrower to prepay the relevant Term Loans in accordance with this Section 1.9 until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 hereof or any other terms of the Loan Documents.
(iii) Within ten Business Days after financial statements have been or The Borrower shall, on each date any Revolving Credit Commitments are required to be delivered reduced pursuant to Section 6.01(a1.13 hereof, prepay the Revolving Loans, Swing Loans, and, if necessary, pre-fund the L/C Obligations (or make other arrangements reasonably satisfactory to the L/C Issuer) by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Revolving Loans, Swing Loans, and U.S. Dollar Equivalent of all L/C Obligations then outstanding with respect to such Class to the amount to which such Revolving Credit Commitments have been so reduced.
(iv) Unless the Borrower otherwise directs, prepayments of Loans of any type under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.9(b) shall be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date of prepayment together with any amounts due to the Lenders under Section 1.12 hereof.
(v) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the related Compliance Certificate has been or is required to U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be delivered pursuant to Section 6.02(a), commencing with in excess of the first full Fiscal Year ending after the Closing DateRevolving Credit Commitments of such Class in effect at such time, the Borrower shall cause immediately and without notice or demand pay over the Subject Loans amount of the excess to the Administrative Agent for the account of the Revolving Lenders as and for a mandatory prepayment on such Obligations, with each such prepayment first to be prepaid applied to the Revolving Loans and Swing Loans until paid in an aggregate principal amount (full with any remaining balance to be held by the “ECF Prepayment Amount”)Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) [Intentionally Omitted].
(ii) (A) If (1) After the Triggering Event, if the Borrower or any Restricted Company consummates a Prepayment Asset Sale Subsidiary realizes or (2) receives any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess respect of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAsset Disposition Event, the Borrower shall cause to be prepaid then on or prior to the date which is ten (10) Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount (or such longer period, not exceeding 60 days, as shall be necessary to comply with Section 2.05(b)(iv) below) the Borrower shall apply a percentage of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all such Net Cash Proceeds received set forth below to the prepayment (in excess compliance with Section 2.05(b)(iv) below) of the De Minimis Loans and, to the extent provided in Section 2.05(b)(iv), Pari Passu Indebtedness. The percentage of Net Cash Proceeds Threshold to be so applied will equal the percentage set forth in the table below (collectively, the “Subject Proceeds”)with Total Leverage Ratios measured after giving Pro Forma Effect to such Asset Disposition Event and such prepayment) of all such Net Cash Proceeds realized or received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.05(b)(ii)(A) ifwith respect to any such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention intent either (a) to reinvest all make a Permitted Reinvestment or (b) to make a portion of such Subject Proceeds payment on Secured Indebtedness, in each case, in accordance with Section 2.06(b)(i)(B).
2.05(b)(ii)(B) (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to which notice may only be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as provided if no Event of Default shall have has occurred and be is then continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds); provided, provided further that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would shall be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent a Restricted Subsidiary is prohibited from making such a prepayment by the holders terms of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchasedExisting Credit Agreement, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof Senior Unsecured Notes, and any other relevant Other Applicable Indebtedness with Permitted Refinancing of the foregoing; provided further, that for purposes of the table below, if a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder Financial Statement Delivery Default shall exist at the applicable time of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) abovemeasurement, the Borrower Total Leverage Ratio shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted deemed to be incurred greater than 6.00:1. Greater than 6.00:1 100 % Less than or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 1006.00:1 and greater than 5.00:1 50 % of all Net Cash Proceeds received therefrom on Less than or prior equal to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been 5.00:1 and greater than 4.50:1 25 % Less than or are required equal to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)4.50:1 0 %
Appears in 1 contract
Samples: Credit Agreement (Targa Resources Investments Inc.)
Mandatory. (i) [Reserved].
(Aii) If any of the Borrowers or any Non-Borrower Subsidiary (1other than the Insurance Subsidiary) Disposes of any Restricted Company consummates a Prepayment Asset Sale or property (2) any Casualty Event occurs, which other than sales of inventory in the aggregate ordinary course of business, and other than any Excluded Asset Disposition and other than the Permitted Xxxxxxxxx Disposition) which, in any such case, results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower Borrowers shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds prepay an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all the Net Cash Proceeds received therefrom in excess of $30,000,000 in the De Minimis aggregate for the Net Cash Proceeds Threshold received from all such Dispositions during the immediately preceding twelve month period (collectivelycalculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Disposition occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, the “Subject Proceeds”as applicable); providedprovided that, that no such prepayment shall be required pursuant with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.06(b)(i)(A) if2.05(b)(ii), on or prior to such date, at the Borrower shall have given written notice election of the Borrowers (as notified by the Borrowers to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at no later than 45 days after the option end of the Borrowerfiscal quarter during which such Disposition occurred), and so long as no Event of Default shall have occurred and be continuing, the Borrower Borrowers may reinvest all or any portion of such Subject Net Cash Proceeds in the business operating assets of the Restricted Companies Borrowers so long as (A) within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following 330 days after receipt of such Net Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(iii) Upon the occurrence of a Recovery Event with respect to the Borrowers which, in any such case, 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 the Net Cash Proceeds received therefrom in excess of $30,000,000 in the aggregate for the Net Cash Proceeds received from all such Recovery Events during the immediately preceding twelve month period (calculated after giving effect to the proviso below) no later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred (such prepayments to be applied as set forth in clauses (v) and (viii) below, as applicable); providedprovided that, that if with respect to any Net Cash Proceeds are realized under a Recovery Event described in this Section 2.05(b)(iii), at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent no longer intended to later than 45 days after the end of the fiscal quarter during which such Recovery Event occurred), and so long as no Event of Default shall have occurred and be so reinvested at continuing, the Borrowers may reinvest all or any time after delivery portion of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to in the prepayment replacement or restoration of any properties or assets in respect of which such Net Cash Proceeds were paid or operating assets of the Term Loans Borrowers so long as set forth in this Section 2.06(A) within 330 days after receipt of such Net Proceeds, such reinvestment shall have been consummated (or a definitive agreement to so reinvest shall have been executed), and (B) if a definitive agreement (including, without limitation, a construction agreement) to so reinvest has been executed within such 330-day period, then such reinvestment shall have been consummated within 330 days after the date such definitive agreement was executed.
(Biv) [Reserved].
(C) If, at Upon the time that incurrence or issuance by the Borrowers of any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.03), the Borrower Borrowers shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior immediately upon receipt thereof by the Borrowers (such prepayments to the date which is five Business Days after the receipt of such Net Cash Proceedsbe applied as set forth in clauses (v) and (viii) below, as applicable).
(iiiv) Within ten Business Days after financial statements have been or are required to be delivered Each prepayment of Loans pursuant to the foregoing provisions of this Section 6.01(a2.05(b) shall be applied, first, to the Term Facility and to the related Compliance Certificate has been or is required principal repayment installments thereof as directed by the Borrowers and specified in the notice of prepayment, (provided that in the event that the Borrowers do not specify the order in which to apply prepayments, the Borrowers shall be delivered pursuant deemed to have elected that such prepayment be applied to reduce the scheduled installments of principal of such Term Loans in reverse order of maturity) and, second, to the Revolving Credit Facility without any reduction of the Revolving Credit Commitments in the manner set forth in clause (viii) of this Section 2.05(b). Subject to Section 6.02(a)2.18 and clause (vi) below, commencing such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)relevant Facilities.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Prepayment Asset Sale Disposition or (2) any Casualty shall suffer an Event occurs, which of Loss resulting in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 250,000 individually or on a cumulative basis in any Fiscal Yearfiscal year of Credit Parties, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt Borrower Representative shall promptly notify the Agent of such Subject Proceeds proposed Disposition or Event of Loss (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed including the amount of the Subject estimated Net Cash Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms received by such Credit Party or such Subsidiary in respect thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2y) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten five (5) Business Days Days) upon receipt by any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds in excess of $250,000; provided that in the case of each Disposition and Event of Loss, if Borrower Representative states in its notice of such event that the applicable Credit Party or Subsidiary intends to invest or reinvest, as applicable, within one hundred eighty (180) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets, then so long as no Default or Event of Default then exists, Borrowers shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are either (x) actually invested or reinvested or (y) committed to be invested or reinvested, in each case as described in Borrower Representative’s notice with such 180-day period. Promptly after the date end of such rejection) 180-day period, Borrower Representative shall notify the Agent whether such Credit Party or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in Borrower Representative’s notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested. The amount of each such prepayment shall be applied first to prepay the Subject outstanding Term Loans until paid in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement full (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the order determined by Agent but without a reduction in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Revolving Credit Commitments) abovethe Revolving Loans, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable IndebtednessSwing Loans, Reimbursement Obligations.
(ii) If after the Third Restatement Closing Date any Restricted Company incurs Credit Party or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 Subsidiary shall issue any new equity securities (other than Refinancing (a) equity securities issued in connection with the exercise of employee stock options, (b) equity securities issued in connection with the exercise of the Cure Right, (c) equity securities issued by a Subsidiary to another Credit Party, (d) equity securities sold to management and/or any employees of any Credit Party or any Subsidiary or (e) equity securities issued in connection with any capital contributions by Holdings or incur or assume any Indebtedness which shall be treated in accordance with (other than that permitted by Section 2.196.11 hereof), then in each such case Borrower Representative shall promptly notify the Borrower shall cause to be prepaid an aggregate principal amount Agent of Term Loans in an amount equal to 100% of all the estimated Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been issuance, incurrence or are required assumption to be delivered pursuant to Section 6.01(areceived by or for the account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) and the related Compliance Certificate has been Business Days) upon receipt by such Credit Party or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)such Subsidiary of
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) (ASubject to Section 2.05(b)(ii) If (1) below, if any member of the Restricted Company consummates a Prepayment Group makes any Asset Sale or (2) any Casualty Event occurs, which in the aggregate Disposition that results in the realization or receipt by any member of the Restricted Company Group of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearAvailable Cash, the Borrower Borrowers shall cause to be prepaid on or prior to the date which that is ten five Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage which is the lesser of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect the Net Available Cash from such Asset Disposition and (B) an amount so as to any Subject Proceeds realized or received with respect ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to any Prepayment 1.00 (on a pro forma basis after taking into account such Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(ADispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that, at the option of the BorrowerBorrowers, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Companies Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within (x) 15 12 months following receipt of such Subject Proceeds receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (y) it being understood that if the Borrower enters into a contract to reinvest any portion of such Subject Proceeds proceeds is not so used within such 15-12 month period following receipt thereofbut within such 12 month period is contractually committed to be used, 21 months following receipt then if such proceeds are not so used within 180 days from the end of such Net Cash Proceeds12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or rescission) (the “Reinvestment End Date”), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, that further, that, if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the any Borrower (or any member of its the Restricted Subsidiaries Group) is required to repay offer to prepay or prepayment any First Lien Debt repurchase other Senior Secured Indebtedness pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the net proceeds of the definition thereof such Asset Disposition (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrowers may apply the Subject Proceeds such Net Available Cash on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Term Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood provided, further, that (1) the portion of the Subject Proceeds such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds such net proceeds shall be allocated to the Subject 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 the prepayment of the Subject Term Loans that would have otherwise been required pursuant to this Section 2.06(b)(i2.05(b)(i) shall be reduced accordingly and (2) 95007600_2 accordingly; provided, further, that to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid indebtedness repurchased or repurchasedprepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Term Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with hereof; provided, further, that set forth in no such prepayment under this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2Section 2.05(b)(i) above, the Borrower shall not be required to subsequently offer where the amount of any such prepayment would be less than the relevant declined prepayment to any Term Lender or any holder greater of Other Applicable Indebtedness$100.0 million and 5.0% of Total Assets.
(ii) [Reserved].
(iii) If any member of the Restricted Company incurs Group Incurs or issues any Indebtedness after the Effective Date not expressly permitted to be incurred Incurred or issued pursuant to Section 7.03 4.09 of Annex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(other than iv) If any Borrower Incurs or issues any Refinancing Indebtedness which shall be treated Term Loans resulting in accordance with Section 2.19net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), the such Borrower shall 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 on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C 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 relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, 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 this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to clause (vii) below, to any Class or Classes of Term Loans, (B) 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 Section 2.05(b)(vii). 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 Section 2.05(b)(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 applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans without at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the 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 95007600_2 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 (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) 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 mandatory prepayment of 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 Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash Proceedsso 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 member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group 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 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 (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by a Borrower) with respect to 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 member of the Restricted Group.
(iiiix) Within ten Upon becoming aware of a Change of Control:
(A) the Initial Borrower or any Permitted Affiliate Parent 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 after financial statements have been or are required Days’ notice to be delivered pursuant to Section 6.01(a) the applicable Borrower, cancel each Facility, and the related Compliance Certificate has been or is required to Commitments thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) (A) If (1) any Restricted Company consummates a Prepayment Asset Sale occurs or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional 2022 Incremental Term B-2 Loans then subject to ratable prepayment requirements (the “Subject Loans”) on a pro rata basis in an amount equal to Required Net Proceed the Asset Sale Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Applicable Asset Sale Proceeds”); provided, provided that (x) no such prepayment shall be required pursuant to this Section Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Net Cash Proceeds in accordance with Section Section 2.06(b)(i)(B).
) (A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to which election may only be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as made if no Specified Event of Default shall have has occurred and be is then continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or and (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunderrequired, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment offer to repurchase any First Indebtedness outstanding at such time that is secured by a Lien Debt on the Collateral ranking pari passu with the Lien securing the Initial Term Loans and the 2022 Incremental Term B-2 Loans pursuant to the terms of the type described in clause (b) documentation governing such Indebtedness with the Net Cash Proceeds of the definition thereof such Disposition or Casualty Event (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person Borrower, at its election, may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.89
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section Section 2.19), the Borrower shall 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 on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section Section 6.02(a), commencing with ) for the first full Fiscal Year ending after the Closing Daterelevant Excess Cash Flow Period, the Borrower shall cause the Subject Loans to be prepaid in 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 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 the Guaranty Agreement and/or otherwise, and/or the application of yank-a-bank provisions that result 90
(iv) Except as otherwise provided in any Incremental Joinder, Refinancing Amendment or Extension 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) shall be 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 principal repayment installments of the Term Loans 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) The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Initial Term Loans and/or 2022 Incremental Term B-2 Loans required to be made pursuant to clauses (i), (ii) and (iii) of this Section 2.06(b) at least (A) in the case of the prepayment of Term Loans which are Base Rate Loans, one Business Day and (B) in the case of prepayments of Term Loans which are 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 Loans or Swing Line Loans and/or reduce L/C Obligations (in each case, taking the 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 payment to 91
(vii) [Reserved].
(viii) Notwithstanding any other provisions of Section 2.06(b), to the extent any prepayment otherwise required by the realization or receipt of any or all of 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 consequences to 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 to or used for the benefit of the Borrower, the portion of such Net Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to 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, 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 affected Net Cash Proceeds 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 this Agreement, each Term Lender shall have the right to reject its applicable percentage of any repayment or prepayment of the Term Loans pursuant to Section 2.06(b) (each such Lender, a “ECF Prepayment AmountRejecting 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”).
Appears in 1 contract
Mandatory. (i) If the Borrower effects a Repricing Transaction on or prior to the first anniversary of the Effective Date, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Lenders, a prepayment premium of 1.00% of the aggregate principal amount of the Advances so modified, prepaid, refinanced, substituted or replaced. Such amounts shall be due and payable on the date of effectiveness of such Repricing Transaction.
(Aii) If (1) Subject to the Intercreditor Agreement, if the Borrower or any Restricted Company consummates a Prepayment Subsidiary completes an Asset Sale or (2) any is subject to a Casualty Event occursEvent, in each case which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 5,000,000 and 15.52% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) Total Assets in any Fiscal Yearfiscal year, then the Borrower shall cause to be prepaid on or prior to the date which is ten shall, no later than five Business Days after following the date of the realization or receipt thereof, apply an amount equal to 100% of such Net Cash Proceeds an aggregate to prepay to the Lenders on a pro rata basis the outstanding principal amount of Initial Term Loans and any Additional Term Loans the Advances; provided that, (A) if no Event of Default exists or would arise therefrom, then subject such proceeds shall not be required to ratable prepayment requirements (be so applied on such date to the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess extent that Borrower shall have delivered a certificate by a Responsible Officer of the De Minimis Proceeds Threshold (collectively, Borrower to the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, Administrative Agent on or prior to such date, date stating that such Net Cash Proceeds are reasonably expected to be reinvested in fixed or capital assets of any Credit Party within 360 days following the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion date of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required (which officers’ certificate shall set forth the estimates of the proceeds to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(Aso expended), at the option of the Borrower, ; and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest (B) if all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so not reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during within such 15360-month day period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described provided in clause (bA) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness)above, then 100% of such unused portion shall be applied on the relevant Person may apply last day of such period first to prepay to the Subject Proceeds Lenders on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Advances.
(iii) Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amountIntercreditor Agreement, if anythe Borrower or any Subsidiary receives Debt Incurrence Proceeds other than those resulting from Permitted Debt, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten then not later than five Business Days after following the date receipt of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboveproceeds, the Borrower shall not be required to subsequently offer prepay the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans Advances in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Debt Incurrence Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Mandatory. (i) (A) If (1) Upon any Restricted Company consummates a Prepayment Asset Sale Extraordinary Receipt received by or (2) any Casualty Event occurs, which in paid to or for the aggregate results in the realization or receipt by any Restricted Company account of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of such Subject Proceeds in the business of the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be applied to the prepayment of the Term Loans as set forth in this Section 2.06.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required (other than any Excluded Joint Venture) in respect of its property or assets, after the first $50,000,000 of Net Cash Proceeds relating to repay or prepayment any First Lien Debt of the type described Extraordinary Receipts in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of since the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof)Restatement Closing Date, and the thereafter any amount in excess of the prepayment $5,000,000 for any one event or series of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) aboverelated events, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business which may (but are not required to) be a replacement, restoration or repair of the 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 is five Business Days the Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, 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 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) and (C) within 10 days of the date the Borrower consummates such restoration, repair or 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 Net Cash Proceeds have been reinvested 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); provided further that any Net Cash Proceeds not so 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.
(ii) If the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) Disposes of any property (other than any Disposition of any property permitted by Xxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x) or (k)) which results in the realization by such Person of Net Cash Proceeds, after the first $10,000,000 of Net Cash Proceeds relating to any such Dispositions in the aggregate since the Restatement Closing Date, and thereafter any amount in excess of $2,500,000 for any one event of series of related events, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary subject to the provisions of Section 2.05(b)(v) (such prepayments to be applied as set forth in clause (iii) below); provided that so long as no Default shall have occurred and be continuing, (A) if the Borrower intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business, 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 the Borrower receives such Net Cash Proceeds, (B) if the Borrower shall have delivered such notice, 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 12 months after the date of receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 12 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 12-month period that it reasonably expects completion to occur within such additional 12-month period) and (C) within 10 days of the date the Borrower consummates such reinvestment, 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 Net Cash Proceeds have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as a result, no mandatory prepayments are required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not so 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.
(iii) Within ten Business Days Each prepayment of Loans pursuant to this Section 2.05(b) shall be applied, first, ratably to the Term A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof in direct order of maturity and, thereafter, to the Revolving Credit Facility in the manner set forth in clause (iv) of this Section 2.05(b).
(iv) Prepayments of the Revolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), first, shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in full, second, shall be applied to prepay Swing Line Loans outstanding at such time until all such Swing Line Loans are paid in full, and, third, shall be applied to prepay 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 clauses (i) or (ii) of this Section 2.05(b), the amount remaining, if any, after financial statements the prepayment in full of all Loans and L/C Borrowings outstanding at such time, may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit, which has been Cash Collateralized, such funds shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable.
(v) Notwithstanding the provisions of Section 2.05(b)(i) or (b)(ii), if any mandatory prepayments under Section 2.05(b)(i) or (b)(ii) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Borrower) under Section 3.05 as a result of any such mandatory prepayment of Eurodollar Rate Loans prior to the last day of an Interest Period, so long as no Event of Default has occurred and is continuing, the Borrower may defer the making of such 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 or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)made.
Appears in 1 contract
Mandatory. (i) If any Loan Party or any of its Subsidiaries Disposes of any property (A) If other than any Disposition of any property permitted by Section 7.05(a), (1) any Restricted Company consummates a Prepayment Asset Sale b), (c), (d), or (2g)) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company such Person of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal YearProceeds, the Borrower shall cause prepay an aggregate principal amount of Loans equal to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt 100% of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject immediately upon receipt thereof by such Person (such prepayments to ratable prepayment requirements be applied as set forth in clause (the “Subject Loans”v) in an amount equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”below); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) ifhowever, on or prior to such datethat, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Sale or any Casualty Event required to be applied Net Cash Proceeds realized in XXXX:\98106221\28\78831.0005 accordance connection with a Disposition described in this Section 2.06(b)(i)(A2.05(b)(i), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuingcontinuing at any time during either 270 day period referred to below, at the election of the Borrower made in good faith (as notified in writing by the Borrower to the Administrative Agent prior to the date a mandatory prepayment of the Loans would otherwise be required hereunder), such Loan Party or such Subsidiary may reinvest all or any portion of such Subject Net Cash Proceeds in assets (other than current assets) used or useful in the business of any Loan Party so long as within 270 days after the Restricted Companies within (x) 15 months following receipt of such Subject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, 21 months following receipt of such Net Cash Proceeds, such Loan Party or such Subsidiary shall have either made such reinvestment or entered into a binding agreement to make such reinvestment and, if such binding agreement is entered into within such 270 day period, such reinvestment actually occurs within 270 days following the date such Loan Party or such Subsidiary entered into such binding agreement; providedand provided further, however, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month periodin accordance with the terms hereof, as applicable, the Borrower shall prepay an aggregate principal amount of Loans equal to any 100% of such uninvested Net Cash Proceeds shall within ten two (2) Business Days following the expiration of the initial 270 day period, or, if a binding agreement was entered into during such initial period, the next 270 day period (such prepayments to be applied to the prepayment of the Term Loans as set forth in this Section 2.06clauses (vi) below).
(Bii) [Reserved].
(C) If, at Upon the time that any such prepayment would be required hereunder, incurrence or issuance by the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment of any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable other than Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.197.02), the Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below).
(iii) Upon any Insurance Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries, and not otherwise included in clauses (i) or (ii) 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 immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (vi) below); provided, however, that, so long as no Event of Default shall have occurred and be continuing at any time during either 270 day period referred to below, with respect to any Net Cash Proceeds realized in connection with the receipt of Insurance Receipts described in this Section 2.05(b)(iii), at the election of the Borrower made in good faith (as notified in writing by the Borrower to the Administrative Agent prior to the date a mandatory prepayment of the Loans would otherwise be required hereunder), such Loan Party or such Subsidiary may apply such Net Cash Proceeds to replace or repair the equipment, fixed assets or real property in respect of which is five Business Days such Net Cash Proceeds were received or other assets used or useful in the business (other than current assets) so long as within 270 days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements , such Loan Party or such Subsidiary shall have been either replaced or repaired such equipment, fixed asset or real property or entered into a binding agreement to replace or repair such assets and if such binding agreement is entered into within such 270 day period, such repair or replacement actually occurs within 270 days following the date of such Loan Party or such Subsidiary’s commitment under such binding agreement; and provided further, however, that if any Net Cash Proceeds are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing not so applied in accordance with the first full Fiscal Year ending after the Closing Dateterms hereof, the Borrower shall cause the Subject Loans to be prepaid in prepay an aggregate principal amount of Loans equal to 100% of such unapplied Net Cash Proceeds within two (2) Business Days following the expiration of the initial 270 day period, or if a binding agreement to repair or replace such asset was entered into during such initial period, the next 180 day period (such prepayments to be applied as set forth in clauses (vi) below).
(iv) At any time that the Net Cash Position is a positive amount and Sweep Plus Loans are outstanding, the Sweep Plus Loans shall be repaid as provided in Section 2.04(c).
(v) If for any reason the Total Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, Sweep Plus 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.
(vi) 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 Sweep Plus 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) and (iii) of this Section 2.05(b), the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Sweep Plus 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 “ECF Prepayment Reduction Amount”) may be retained by the 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)(i). 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 Borrower or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable. Amounts to be applied as provided in this clause (vi) to the prepayment of the Revolving Credit Facility shall be applied first to reduce outstanding Base Rate Loans and thereafter shall be applied to prepay outstanding Eurodollar Rate Loans.
Appears in 1 contract
Samples: Credit Agreement (Benihana Inc)
Mandatory. (i) )
(A) If (1) any Restricted Company consummates a Prepayment Asset Sale Disposes of any property or assets other than Excluded Dispositions (but solely to the extent the aggregate fair market value of all such Dispositions from and after the Effective Date exceed $25,000,000), or (2) any Casualty Event occurs, which in the aggregate results in the realization or receipt by any Restricted Company of Net Cash Proceeds in excess of the greater of $20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) 5,000,000 in any Fiscal Yearfiscal year, the Borrower shall cause to be prepaid on or prior to the date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount equal to Required Net Proceed Percentage 100% of all Net Cash Proceeds received in excess of the De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”)received; provided, provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A2.05(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Net Cash Proceeds in accordance with Section 2.06(b)(i)(B2.05(b)(i)(B) (which election may only be made if no Event of Default has occurred and is then continuing).;
(AB) With respect to any Subject Net Cash Proceeds realized or received with respect to any Prepayment Asset Sale Disposition or any Casualty Event required to be applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A2.05(b)(i)(A), at the option of the Borrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may or may cause any of its Restricted Subsidiaries to reinvest all or any portion of such Subject Net Cash Proceeds in the business acquisition, improvement or maintenance of assets useful in the operations of the Restricted Companies (1) in the case of any Net Cash Proceeds received with respect to any Disposition, within (x) 15 12 months following receipt of such Subject Net Cash Proceeds or (y) if the Borrower a Restricted Company enters into a contract to reinvest such Subject Net Cash Proceeds within such 15-12 month period following receipt thereof, 21 18 months following receipt of such Net Cash Proceeds and (2) in the case of any Net Cash Proceeds received with respect to any Casualty Event, within (x) 24 months following receipt of such Net Cash Proceeds or (y) if a Restricted Company enters into a contract to reinvest such Net Cash Proceeds within such 24 month period following receipt thereof, 30 months following receipt of such Net Cash Proceeds; provided, provided that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during (I) in the case of any such 15-Disposition, such 12 month period or 21-18 month period, as applicable and (II) in the case of any such Casualty Event, such 24 month period or 30 month period, as applicable, an amount equal to any such Net Cash Proceeds shall within ten Business Days be immediately applied to the prepayment of the Term Loans as set forth in this Section 2.062.05.
(B) [Reserved].
(C) If, at the time that any such prepayment would be required hereunder, the Borrower or any of its Restricted Subsidiaries is required to repay or prepayment any First Lien Debt of the type described in clause (b) of the definition thereof (such Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the relevant Person may apply the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); it being understood that (1) the portion of the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of the Subject Proceeds shall be allocated to the Subject Loans in accordance with the terms hereof), and the amount of the prepayment of the Subject Loans that would have otherwise been required pursuant to this Section 2.06(b)(i) shall be reduced accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such Indebtedness prepaid or repurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Subject Loans in accordance with the terms hereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); it being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, the Borrower shall not be required to subsequently offer the amount of the relevant declined prepayment to any Term Lender or any holder of Other Applicable Indebtedness.
(ii) If any Restricted Company incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
(iii) Within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), commencing with the first full Fiscal Year ending after the Closing Date, the Borrower shall cause the Subject Loans to be prepaid in an aggregate principal amount (the “ECF Prepayment Amount”)
Appears in 1 contract
Samples: Credit Agreement (Lender Processing Services, Inc.)
