Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. (ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement. (iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Granite City Food & Brewery Ltd.)
Mandatory. (i) The Borrower shall, on each date the Commitments are reduced pursuant to Section 2.9, prepay the Swingline Loans and Revolving Loans by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Swingline Loans and Revolving Loans then outstanding to the amount to which the Commitments have been so reduced.
(ii) If at any time the sum of the unpaid principal balance of the Swingline Loans and Revolving Loans then outstanding shall be in excess of the Borrowing Base as determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall immediately and without notice or demand 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 applied to the Swingline Loans until paid in full and then to Revolving Loans.
(iii) If any Subsidiary Loan Party shall at any time or from time to time make or agree to make a Disposition of Receivables then included in the Borrowing Base or that otherwise constitute Collateral subject to the Lien of the Administrative Agent (whether or not then included in the Borrowing Base), which Disposition shall be subject to the conditions of Section 8.10(f), 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 such Loan Party in respect thereof) and, promptly upon receipt by the relevant Loan Party of the Net Cash Proceeds of such Disposition, the Borrower shall prepay the Obligations to the extent a Borrowing Base Deficiency exists or would result following such Disposition in an aggregate amount equal to the lesser of the amount of such Borrowing Base Deficiency and 100% of all such Net Cash Proceeds, with each such prepayment first to be applied to the Swingline Loans until paid in full and then to Revolving Loans.
(iv) If any Loan Party shall at any time or from time to time make or agree to make a Disposition outside the normal course of business (other than as described in Section 2.6(b)(iii) above) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty then included as part of the Collateral, then (x) the Borrower 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 the Borrower or such Subsidiary Loan Party in respect thereof) and (y) and, promptly upon receipt by the Borrower or the Subsidiary relevant Loan Party of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall first to be applied first to the outstanding Term Swingline Loans until paid in full and then to the Line of Credit Loans Revolving Loans; provided that (without x) so long as no Default then exists, this subsection shall not require any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued such prepayment with respect to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds received on account of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary an Event of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of Loss so long as such Net Cash Proceeds from are applied to replace or restore the issuance of such new equity securities relevant Property and (y) one hundred percent (100%) of the this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of the incurrence of Dispositions during any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, not exceeding $500,000 in the case aggregate so long as no Default then exists.
(v) Each prepayment of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii2.6(b) during shall be made by the year immediately subsequent to payment of the year such voluntary prepayments were made; provided that, the principal 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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans prepaid and, if necessary, prefund the L/C Obligations then required by the amountAdministrative Agent, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding accrued interest thereon to the amount to which the Line date of Credit Commitments have been so reducedprepayment.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 7.05(a) through (f)) which results in the realization by such Person of Net Cash Proceeds, the Borrower shall at 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 applied as set forth in clause (v) below); provided, however, that, with respect to any time or from time to time make 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 of such Disposition), and so long as no Default shall suffer an Event have occurred and be continuing, the Borrower or such Subsidiary may reinvest all or any portion of Loss resulting in such Net Cash Proceeds in an amount exceeding $100,000 operating assets so long as within 180 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (as certified by the Borrower in any fiscal yearwriting to the Administrative Agent); provided, then (x) further, however, that if the Borrower shall promptly notify the Administrative Agent on or prior to the date 180 days after receipt of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds 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 extended to such 360th day; and provided, further, 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 one (1) Business Day after receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in respect thereofclause (v) and 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) promptly upon receipt 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 the Subsidiary any of the Net Cash Proceeds its Subsidiaries of such Disposition any Indebtedness (other than Indebtedness expressly permitted to be incurred or such Event of Lossissued 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 2.05(b)(iv).
(v) 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.
(vi) Notwithstanding any of the other provisions of clause (i), (ii), (iii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), and no 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), (iii) 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), (iii) 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 any Event of Default, during any such deferral period, the Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not 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, 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 100% such excess. Upon the drawing of the amount any Letter of all such Net Credit that has been Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossCollateralized, the Net funds held as Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment Collateral shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date further action by or notice to or from the Borrower or any Subsidiary shall issue any new equity securities (other than (ALoan Party) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund reimburse the L/C Obligations by Issuer or the amountRevolving Credit Lenders, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedas applicable.
Appears in 1 contract
Samples: Credit Agreement (Cnet Networks Inc)
Mandatory. (i) If Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any Subsidiary shall at any time of its Subject Subsidiaries in respect of its property or from time to time make a Disposition or shall suffer an Event assets, after the first $50,000,000 of Loss resulting in Net Cash Proceeds relating to any Extraordinary Receipt (it being understood and agreed that the Specified Net Cash Proceeds shall not be taken into account for purposes of calculating such first $50,000,000) and thereafter any amount in an amount exceeding excess of $100,000 in 5,000,000 for any fiscal yearone event or series of related events, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the prepay an aggregate principal amount of the estimated Loans equal to 100% of all Net Cash Proceeds to be received therefrom within three Business Days after the date of receipt thereof by the Borrower or such Subsidiary in respect thereofsubject to the provisions of Section 2.05(b)(iv); provided that so long as no Default shall have occurred and be continuing, (A) and (y) promptly upon receipt by if the Borrower or the Subsidiary of 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 Disposition intention to the Administrative Agent on or such Event of Loss, prior to the fifth Business Day immediately following the date on which Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all receives such Net Cash Proceeds; provided, in the case of (xB) each Disposition and Event of Loss, if the Borrower states in its notice of shall have delivered such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Lossnotice, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then may be reinvested so long as no Default or Event of Default then exists, within 12 months after the Borrower shall not be required to make a mandatory prepayment under this Section in respect receipt of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or reinvested as described in the Borrower’s notice with such 180-day periodunreasonably delayed, and promptly is substantially completed within 24 months after the end date of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount receipt of such Net Cash Proceeds (provided that if the relevant project is not substantially completed within 24 months after such date of receipt, the Borrower shall have up to an additional 12 months to complete such project so invested or reinvested long as it certifies in a written notice to the Administrative Agent delivered prior to the expiration of such 24‑month period that it reasonably expects completion to occur within such additional 12‑month period and attaching a budget and schedule for the remaining portion of the construction that evidences the same) and (yC) 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 constituting proceeds have been reinvested in accordance with the proviso of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Lossthis 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. The Borrower confirms that it received $44,000,000 of Net Cash Proceeds from Extraordinary Receipts through September 2013 (the “Specified Net Cash Proceeds”) and delivered a notice dated September 11, 2013 to the Administrative Agent relating thereto under the Existing Credit Agreement. Unless the Borrower reinvests such Net Cash Proceeds in accordance with clause (B) of the preceding sentence, such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term prepayment of the Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullaccordance with this Section 2.05(b)(i).
(ii) If after the Closing Date the Borrower or any Subsidiary Each prepayment of Loans pursuant to this Section 2.05(b) shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliatesbe applied, (B) equity securities issued to satisfy local licensing requirementsfirst, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued ratably to the seller of an Acquired Business in connection with an Acquisition permitted by Term A Facility, the terms hereofTerm B Facility and, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofapplicable, the Borrower shall promptly notify Incremental Term Facilities and to the Administrative Agent of principal repayment installments thereof on a pro rata basis and, thereafter, to the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations Revolving Credit Facility in the amount equal to manner set forth in clause (x) twenty five percent (25%iii) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 this Section 6.11 or any other terms of this Agreement2.05(b).
(iii) On or before Prepayments of the date that is thirty (30) days after the date annual financial statements are required to be delivered Revolving Credit Facility made pursuant to Section 6.1(bclause (i) of each fiscal yearthis Section 2.05(b), beginning with the fiscal year ending on or about December 31first, 2013shall be applied to prepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in full, the Borrower second, shall be applied to prepay the then-Swing Line Loans outstanding at such time until all such Swing Line Loans by an amount equal are paid in full, and, third, shall be applied to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for prepay Revolving Credit Loans outstanding at such fiscal year (ortime until all such Revolving Credit Loans are paid in full; and, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day prepayments of the first month following Revolving Credit Facility required pursuant to clause (i) of this Section 2.05(b), the Restatement Effective Date through amount remaining, if any, after the end prepayment in full of all Loans and L/C Borrowings outstanding at such fiscal year) time, may be retained by the Borrower for use in the ordinary course of its business. The amount Upon the drawing of each any Letter of Credit, which has been Cash Collateralized, such prepayment funds shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, further action by the amount of such voluntary prepayments, the amount required or notice to be paid by or from the Borrower under this Section 2.8(b)(iiior any other Loan Party) during to reimburse the year immediately subsequent to applicable L/C Issuer or the year such voluntary prepayments were made; provided thatRevolving Credit Lenders, 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 madeas applicable.
(iv) The Borrower shall, on each date Notwithstanding the Line provisions of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and2.05(b)(i), if necessary, prefund any mandatory prepayments under Section 2.05(b)(i) would result in the L/C Obligations by Borrower incurring any obligation (as determined in the amount, if any, necessary to reduce the sum reasonable judgment of the aggregate principal amount Borrower) under Section 3.05 as a result of Line any such mandatory prepayment of Credit Eurodollar Loans and L/C Obligations then outstanding prior to the amount to 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 the Line of Credit Commitments such mandatory prepayment would otherwise have been so reducedrequired to be made.
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Mandatory. (i) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries (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 any Extraordinary Receipts in the aggregate since the Restatement Closing Date, and thereafter any amount in excess of $5,000,000 for any one event or series of related events, the Borrower shall prepay an aggregate principal amount of Loans 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 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 Subsidiary shall at of its Subsidiaries (other than any time 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 from time to time make a Disposition or shall suffer an Event (k)) which results in the realization by such Person of Loss resulting in Net Cash Proceeds, after the first $10,000,000 of Net Cash Proceeds relating to any such Dispositions in an the aggregate since the Restatement Closing Date, and thereafter any amount exceeding in excess of $100,000 in 2,500,000 for any fiscal yearone event of series of related events, then (x) the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of Loans equal to 100% of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be 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 respect thereofclause (iii) below); provided that so long as no Default shall have occurred and be continuing, (yA) promptly upon receipt by if the Borrower or the Subsidiary of intends to reinvest the Net Cash Proceeds thereof in capital assets used or useful in the business, it shall deliver written notice of such Disposition intention to the Administrative Agent on or such Event of Loss, prior to the fifth Business Day immediately following the date on which the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all receives such Net Cash Proceeds; provided, in the case of (xB) each Disposition and Event of Loss, if the Borrower states in its notice of shall have delivered such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Lossnotice, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then may be reinvested so long as no Default or Event of Default then exists, within 12 months after the Borrower shall not be required to make a mandatory prepayment under this Section in respect receipt of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested reinvestment shall have begun and so long as such reinvestment has not been terminated, abandoned or reinvested as described in the Borrower’s notice with such 180-day periodunreasonably delayed, and promptly is substantially completed within 12 months after the end date of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount 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 invested or reinvested 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 (yC) Net Cash Proceeds constituting proceeds within 10 days of business interruption insurance maintained the date the Borrower or applicable Subsidiary following an Event consummates such reinvestment, it shall deliver a certificate of Lossa Responsible Officer to the Administrative Agent certifying that all, no mandatory prepayment of or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds shall be 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 clause (iSection 2.05(b)(ii). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without ; provided further that any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds not so reinvested at the end of such issuance or incurrence period shall be immediately applied to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) prepayment of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid as set forth in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 this Section 6.11 or any other terms of this Agreement2.05.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered Each prepayment of Loans pursuant to this Section 6.1(b2.05(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 each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to this Section 2.05(b).
(xiv) the applicable ECF Percentage for the most recently completed fiscal year Prepayments of the BorrowerRevolving Credit Facility made pursuant to clause (i) or (ii) of this Section 2.05(b), multiplied by (y) Cash Flow of Borrower and its Subsidiaries for first, shall be applied to prepay L/C Borrowings outstanding at such fiscal year (ortime 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 the fiscal year ending on or about December 31, 2013, for the period commencing on the first day prepayments of the first month following the Restatement Effective Date through the end Revolving Credit Facility required pursuant to clauses (i) or (ii) of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepaymentsthis Section 2.05(b), the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amountremaining, if any, necessary to reduce after the sum prepayment in full of the aggregate principal amount of Line of Credit all Loans and L/C Obligations then 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 amount to 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 the Line of Credit Commitments such mandatory prepayment would otherwise have been so reducedrequired to be made.
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Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 individually or $200,000 on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $100,000 individually or $200,000 on a cumulative basis in any fiscal year of the Borrower; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorybusiness, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with within such one hundred eighty (180-) day period, and promptly . 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 $100,000 individually or $200,000 on a cumulative basis in any fiscal year of the Borrower not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full, then to the Revolving Loans until paid in full (without a permanent reduction of the Revolving Commitments), and then to the Line Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans (without any reduction such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A LoansLoans until paid in full, CapEx and then to the Revolving Loans and Delayed Draw Term Loans pro rata until paid in full and (without a permanent reduction of the Revolving Commitments), then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullSwing Loans. 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) On or before If at any time the date that is thirty sum of the unpaid principal balance of the Revolving Loans, Swing 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 (30and, in any event, within one (1) days Business 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 applied to the Revolving Loans until payment in full thereof (without a permanent reduction of the Revolving Commitments), then to the Swing Loans until payment in full thereof, with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, Obligations in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full full, and then to the Line of Credit Revolving Loans until paid in full (without a permanent reduction of the Line Revolving Commitments), then to the Swing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Credit Commitmentthe Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) On or before May 1 of each year, beginning May 1, 2018, the Borrower shall prepay the then-outstanding Loans by an amount equal to 50% of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower; provided that, if at any time (A) the Senior Leverage Ratio is less than 2.00:1.00 as of the end of two consecutive fiscal quarters of the Parent and the Borrower has delivered to the Administrative Agent the compliance certificate required by Section 6.1(c) evidencing such computations of the Senior Leverage Ratio and (B) no Default or Event of Default has occurred and is continuing on such date, then the Borrower shall prepay the then-outstanding Loans by an amount equal to 25% of Excess Cash flow for the duration of this Agreement; provided, further that no Excess Cash Flow payment shall be required under this Section 2.8(b)(v) for the duration of this Agreement to the extent that (A) the Senior Leverage Ratio is less than 1.50:1.00 as of the end of two consecutive fiscal quarters of the Parent and the Borrower has delivered to the Administrative Agent the compliance certificate required by Section 6.1(c) evidencing such computations of the Senior Leverage Ratio and (B) no Default or Event of Default has occurred and is continuing on such dates. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full. Any voluntary prepayments of principal , then to the Revolving Loans until paid in full (without a permanent reduction of the Term Loans made during any year shall reduceRevolving Commitments), by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent and then 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 madeSwing Loans.
(ivvi) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of 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; provided that in the event the Mezzanine Subordinated Debt is accelerated under Section 2(b)(v) of the Mezzanine Loan Agreement, the Borrower shall immediately and automatically (x) 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 (y) 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 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 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.
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Mandatory. (i) If the The Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount prepayment of the estimated Net Cash Proceeds to be received by Loans until paid in full upon the Borrower or such Subsidiary occurrence of any of the following at the following times and in respect thereof) and (y) promptly upon the following amounts: Concurrently with the receipt by the Borrower or the Subsidiary any of the its Subsidiaries of any Net Cash Proceeds of such Disposition from any Asset Sale or such Event of LossRecovery Event, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that, in the case of (x) each Disposition and so long as no Event of LossDefault shall have occurred and be continuing, if and (y) upon written notice to the Borrower states in Administrative Agent, the Borrower, directly or through one or more of its notice of such event that Subsidiaries, shall have the Borrower or the applicable Subsidiary intends option to invest or reinvest, as applicable, such Net Cash Proceeds within 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 or other assets of the type used or useful in the business of the Borrower and or any of its Subsidiaries’ business other than inventory; provided further that, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent if such Net Cash Proceeds are actually invested or not so reinvested as described in the Borrower’s notice with within such 180-day period, and promptly after the end of such 180-day periodperiod but are committed to be reinvested pursuant to a binding obligation, the Borrower or its Subsidiaries (as applicable) shall promptly prepay the Obligations in the amount of have an additional 90 days to reinvest such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds.
(ii) If after Mandatory prepayments of the Closing Date Loans shall be applied, first, to prepayment of the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued Swingline Loans; second, if all Swingline Loans have been paid in full, to CIC Partners repayment of outstanding LC Disbursements; third, if all Swingline Loans and its Controlled Investment Affiliatesoutstanding LC Disbursements have been paid in full, (B) equity securities issued to satisfy local licensing requirementsprepayment of the Revolving Loans; and fourth, (C) equity securities issued if all Swingline Loans, outstanding LC Disbursements and Revolving Loans have been paid in connection with the exercise of employee stock optionsfull, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereofCash Collateralize all LC Exposure, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end 103% of such fiscal year) . The amount of each such prepayment shall be applied first LC Exposure, on terms, pursuant to documentation, and in form and substance reasonably satisfactory to the outstanding Term Loans until paid in full Administrative Agent and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeeach applicable Issuing Bank.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
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Samples: Credit Agreement (Globant S.A.)
Mandatory. (i) If the On each date on which Lender actually receives a distribution of Net Proceeds, and if Lender is not obligated to make such Net Proceeds available to Borrower for Restoration or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in otherwise remit such Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Losspursuant to Section 8.5 hereof, the Borrower Lender shall prepay the Obligations in apply an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the such Net Cash Proceeds as a prepayment of the incurrence Debt in an amount up to the Release Price associated with the Individual Property (provided that to the extent Net Proceeds are less than such Release Amount, provided there exists no Event of any such Indebtedness. The amount of each such prepayment Default, Borrower shall be applied first permitted to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by Loan in an amount equal to the remainder of such Release Price in compliance with the requirements of Section 2.6(a) hereof without the payment of any Spread Maintenance Premium) to which such Net Proceeds relate together with any Compensating Interest and any Breakage Costs associated therewith and any other sums due in connection therewith. All Net Proceeds in excess of such Release Price and Compensating Interest and Breakage Costs associated therewith (xif any) and any other sums due in connection therewith shall (i) if an Event of Default has occurred and is continuing, be held and applied by Lender in accordance with the applicable ECF Percentage terms of this Agreement and the other Loan Documents and (ii) if no Event of Default has occurred and is continuing be applied as follows: (A) first, to the Mezzanine A Loan up to the Mezzanine A Release Price for the most recently completed fiscal year of the Borrower, multiplied by affected Individual Property (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year together with any Compensating Interest (or, as defined in the case of Mezzanine A Loan Agreement) and any Breakage Costs (as defined in the fiscal year ending on or about December 31Mezzanine A Loan Agreement) associated therewith and any other sums due in connection therewith), 2013(B) second, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then Mezzanine B Loan up to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.Mezzanine B Release
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Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 individually or $500,000 on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000 individually or $500,000 on a cumulative basis in any fiscal year of the Borrower; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorybusiness, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with within such one hundred eighty (180-) day period, and promptly . 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 Borrower not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full full, and then to the Line of Credit Revolving Loans (without any reduction in the Line of Credit Commitments) until paid in fullfull (without a permanent reduction of the Revolving Credit Commitments). 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 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 Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A LoansLoans until paid in full, CapEx and then to the Revolving Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any a permanent reduction in of the Line of Revolving Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before If at any time the date that is thirty 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 (30and, in any event, within one (1) days Business 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 applied to the Revolving Loans until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, Obligations in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full full, and then to the Line of Credit Revolving Loans until paid in full (without a permanent reduction of the Line Revolving Credit Commitments). The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Credit Commitmentthe Lenders for any breach of Section 6.11 or any other terms of this Agreement.
(v) until paid in full. Any 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 principal of the Term Loans made during any such fiscal year shall reduceor 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, prepayments made during such fiscal year that reduced the amount required to be paid by the Borrower under prepaid pursuant to this Section 2.8(b)(iii2.8(b)(v) during in 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 zeroprior fiscal year, and no such voluntary (3) all mandatory prepayments shall reduce payments required made pursuant 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 made2.8(b)(ix).
(ivvi) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund 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 Line of Credit Revolving Loans and L/C Obligations then outstanding to the amount to which the Line of 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 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.
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Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower The Company shall prepay the Obligations Committed Loans as hereinafter provided in an aggregate amount equal to 100% of the amount Net Cash Proceeds received by any Loan Party from all Involuntary Dispositions with respect to Collateral within five (5) days of all the date of receipt of such Net Cash ProceedsProceeds with respect to such Involuntary Disposition; provided, however, that, with respect to an Involuntary Disposition of the type described in the case of clause (xa) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvestdefinition, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default shall have occurred and be continuing and such casualty occurs prior to November 17, 2026, all or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment any portion of such Net Cash Proceeds shall not be required under this clause to be so applied at the election of the Company (ias notified by the Company to the Administrative Agent) to the extent such Loan Party reinvests such Net Cash Proceeds in restoration or repair of the applicable loss, destruction or damage of such Collateral within 180 days after the receipt of such Net Cash Proceeds (or, if a commitment for such reinvestment has been made within such 180 day period, within 360 days after the receipt of such Net Cash Proceeds). The amount of each ; provided that if such prepayment Net Cash Proceeds shall have not been so reinvested shall be immediately applied first to prepay the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullCommitted Loans.
(ii) If after The Company shall prepay the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued Committed Loans in connection with a Property Substitution or Prepayment Release in the exercise of employee stock optionsamounts, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereofextent required, if any) or incur any Indebtedness other than that permitted by pursuant to Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement2.19.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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[Reserved].
(iv) The Borrower shallWith respect to any Mortgaged Property for which an “as completed” valuation was obtained in calculating the Initial Appraised Value, on each date to the Line extent a lesser appraised value is given to such Mortgaged Property in accordance with the definition of Credit Commitments are reduced pursuant to Section 2.10“Initial Appraised Value”, the Company shall prepay the Line Committed Loans in an amount equal to 80% of Credit Loans andsuch difference, if necessary, prefund the L/C Obligations as reasonably determined by the Administrative Agent and stated in writing to the Company; provided that the amount of such prepayment shall not exceed an amount such that, after giving effect to such adjustment of the Initial Appraised Value of the applicable Mortgaged Property, the Aggregate Outstanding Loan Value (after giving effect to such prepayment amount, if any, necessary ) does not exceed the Aggregate Loan Cap in effect at such time.
(v) Each prepayment of Loans pursuant to reduce clauses (i) and (iv) of this Section 2.05(b) shall be applied ratably to the sum remaining principal repayment installments of the aggregate Term Loans (including any payment due on the Maturity Date) in inverse order of maturity. 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 principal amount prepaid through the date of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedprepayment.
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Mandatory. (i) If Subject to the terms of the Senior Subordination Agreement, if the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 110,000 individually or $220,000 on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $110,000 individually or $220,000 on a cumulative basis in any fiscal year of the Borrower; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorybusiness, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with within such one hundred eighty (180-) day period, and promptly . 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 Borrower not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullreinvested.
(ii) If Subject to the terms of the Senior Subordination Agreement, if after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. 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) On or before [Reserved].
(iv) Subject to the date that is thirty (30) days terms of the Senior Subordination Agreement, if after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall promptly notify the Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-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 an amount equal to the payment of (x) first, the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower Original Principal to be prepaid and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first cash interest accrued thereon to the outstanding Term Loans date of prepayment until paid in full and, second, the Deferred Interest Principal and then cash interest accrued thereon to the Line date of Credit Loans prepayment plus (without reduction of y) the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amountapplicable Prepayment Premium, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
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Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the The Borrower shall promptly notify the Administrative Agent of such proposed Disposition be required to prepay all or Event of Loss (including the amount a portion of the estimated Net Cash Proceeds to be received Loans and/or reduce the Commitments, in each case as provided in clause (ii) below:
(A) unless otherwise agreed by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of LossMajority Lenders, the Borrower shall prepay the Obligations Loans in an aggregate amount equal full and terminate the Commitments upon the occurrence of a Change of Control after the Financial Closing Date;
(B) unless otherwise agreed by the Lenders, within three (3) Business Days after any date on which any Operating Company Group Member receives Net Cash Proceeds of any Casualty Event occurring after the Financial Closing Date to 100% of the amount of all extent that such Net Cash ProceedsProceeds exceed $5,000,000 individually or in the aggregate in any fiscal year; providedprovided that the foregoing shall not apply (1) to proceeds under business interruption insurance, (2) to the Net Cash Proceeds of any Casualty Event required to be applied otherwise under the terms and conditions of Existing Indebtedness, the Operating Company Facilities or Permitted Refinancing Indebtedness or, in the case of (x) each Disposition and Event of Loss, if any such Net Cash Proceeds received by the Borrower states or its Subsidiaries, applicable Law, (3) to the extent that (I) the Borrower advises the Facility Agent at the time of the receipt of the relevant Net Cash Proceeds that it intends to use such Net Cash Proceeds to repair or replace the Property subject to such Casualty Event or to reinvest in its notice of Utility Capital Expenditures, (II) such event that Net Cash Proceeds are held by the Borrower or the applicable Operating Company Subsidiary intends in a segregated investment or other account until so used to repair or replace such Property or invest in such Utility Capital Expenditures and (III) such Net Cash Proceeds are committed to be applied to repair or reinvest, as applicable, replace such Property (or invest in Utility Capital Expenditures) within 180 one hundred and 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to (it being understood that, in the extent event Net Cash Proceeds from more than one Casualty Event are held by the Borrower or the applicable Operating Company Subsidiary such Net Cash Proceeds are actually invested or reinvested as described shall be deemed to be utilized in the Borrower’s notice with same order in which such 180-day periodNet Cash Proceeds were so received and, and promptly after the end of such 180-day periodaccordingly, the Borrower shall promptly prepay the Obligations in the amount of any such Net Cash Proceeds not so invested committed to be applied within one hundred and eighty (180) days of receipt or reinvested and not so applied within twelve (y12) months of receipt shall be forthwith applied to the prepayment of Loans as provided above), (4) with respect to Net Cash Proceeds constituting proceeds of business interruption insurance maintained which the CFO certifies are being paid to the Borrower or the applicable Subsidiary following an Event of Loss, no mandatory prepayment Operating Company Group Member to reimburse the Borrower or Operating Company Group Member (as applicable) for expenditures previously incurred to repair or replace the Property which was the subject of such Net Cash Proceeds shall be Casualty Event, (5) to the extent that a Dividend Prohibition applies with respect to the applicable Operating Company Subsidiary, except that if and to the extent that such Dividend Prohibition subsequently ceases to apply the prepayment otherwise required under by this clause (iB) shall be reinstated, or (6) to the extent that such prepayment would reasonably be likely to have an adverse impact on (I) any of the Borrower’s regulatory 38 Puget Opco Credit Agreement approvals (or any applications for or renewals thereof). , (II) the Borrower’s standing with any applicable regulatory agency, (III) the ability of the Borrower to achieve debt to equity ratios consistent with those of similarly situated companies in the conduct of the Borrower’s business, or (IV) the rating of any of the Borrower’s indebtedness or the ability of the Borrower to obtain credit in the ordinary course of its business.
(I) The amount Liquidity Letter of Credit Sublimit shall be permanently reduced from time to time on the date of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations Liquidity Facility by the amount, if any, necessary by which the amount of the Liquidity Letter of Credit Sublimit exceeds the Liquidity Facility after giving effect to such reduction of the Liquidity Facility; and (II) The Energy Hedging Letter of Credit Sublimit shall be permanently reduced from time to time on the date of each reduction in the Energy Hedging Facility by the amount, if any, by which the amount of the Energy Hedging Letter of Credit Sublimit exceeds the Energy Hedging Facility after giving effect to such reduction of the Energy Hedging Facility.
(ii) (A) In the case of any required prepayment or reduction of the Facilities pursuant to Section 2.03(b)(i) on or after the Financial Closing Date the applicable amount determined pursuant to Section 2.03(b)(i) shall be applied on the date of receipt with respect to Net Cash Proceeds, the applicable Quarter End Date or such other date specified in Section 2.03(b)(i) and shall be applied first, ratably to the Unreimbursed Letter of Credit Amounts, second, ratably to prepay the outstanding Loans and reduce the sum Commitments in a corresponding amount, and, third, to Cash Collateralize the remaining LC Exposure. Upon the drawing of the aggregate principal amount of Line any Letter of Credit Loans and L/C Obligations then outstanding 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 amount Borrower) to which reimburse the Line of Credit Commitments have been so reduced.relevant Issuing Bank or the Lenders, as applicable; and
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Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearLoss, then (x) the Borrower 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 the Borrower or such any Restricted Subsidiary in respect thereof) and and, within five (y5) promptly upon Business Days after the receipt by the Borrower or the Subsidiary of the such Net Cash Proceeds of such Disposition or such Event of LossProceeds, the Borrower shall prepay the Obligations relevant Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (yx) 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 (zy) other than during the Basket Suspension Period, in the case of (x) each any Disposition and or Event of LossLoss not covered by clause (yx) above, so long as no Event of Default has occurred and is continuing, if the Borrower states (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in its notice of such event assets that perform the same or similar function for the Borrower or the applicable Subsidiary intends to invest or reinvesta Restricted Subsidiary, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested reinvested in such assets or reinvested as described (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 Borrower’s notice with business of the Borrower or a Restricted Subsidiary, to the extent such 180-day period, and promptly Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 18012-day 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 Obligations relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If the Borrower any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 individually or on a cumulative basis in any fiscal yearyear of Credit Parties, then (x) the Borrower Representative 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 the Borrower such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within five (5) Business Days) upon receipt by the Borrower any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower Representative states in its notice of such event that the Borrower applicable Credit Party or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 the BorrowerBorrower Representative’s notice with such 180-day period, and promptly . Promptly after the end of such 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 and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Third Restatement Closing Date the Borrower any Credit Party or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (Ca) equity securities issued in connection with the exercise of employee stock options, and (Db) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted the exercise of the Cure Right, (c) equity securities issued by the terms hereofa Subsidiary to another Credit Party, if any(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 (other than that permitted by Section 6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the Borrower account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days) upon receipt by the Borrower such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.of
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) If the any Borrower or any Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower Representative 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 the such Borrower or such Subsidiary Guarantor in respect thereof) and (y) and, promptly upon receipt by the such Borrower or the Subsidiary such Guarantor of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of this subsection shall not require any such event that the Borrower or the applicable Subsidiary intends prepayment with respect to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event received on account of Loss, Dispositions or Events of Loss during any fiscal year of the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful Parent not exceeding $500,000 (the “Threshold Amount”) in the Borrower and its Subsidiaries’ business other than inventory, then aggregate so long as no Default or Event of Default then exists, and (y) in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or Event of Default then exists, if the Borrower Representative states in its notice of such event that the relevant Borrower or the relevant Guarantor intends to reinvest, within 180 days of the applicable Disposition or Event of Loss, the Net Cash Proceeds thereof in Property similar to the Property which were subject to such Disposition or other assets useful in such Borrower’s or such Guarantor’s business, then the Borrowers shall not be required to make a mandatory prepayment under this Section subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested reinvested in such similar Property or reinvested as described such other Property useful in the such Borrower’s notice with or such Guarantor’s business within such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower Representative shall notify the Administrative Agent whether such Borrower or such Guarantor has reinvested such Net Cash Proceeds in such similar or other useful Property, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) reinvested, provided, that if at the end of such 180-day period such Net Cash Proceeds constituting are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of the Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so expended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360 days following the applicable Disposition. The amount of each such prepayment shall be applied, first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment). If the Administrative Agent or the Required Lenders so request, all proceeds of business interruption insurance maintained such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its 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 Representative’s direction for application to or applicable Subsidiary following reimbursement for the costs of replacing, rebuilding or restoring such Property or in any permitted reinvestment.
(ii) If after the Closing Date any Borrower or any Guarantor shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower Representative 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 Guarantor in respect thereof. Promptly upon receipt by such Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrowers shall prepay the Obligations in an Event aggregate amount equal to 100% of Loss, no mandatory prepayment the amount of such Net Cash Proceeds shall be required under this clause (i)Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessRevolving Credit. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) Within 100 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning year of the Parent (commencing with the fiscal year ending on or about December 31, 2013), the Borrower Borrowers shall prepay the then-outstanding Loans Obligations by an amount equal to (x) the applicable ECF Excess Cash Flow Prepayment Percentage of Excess Cash Flow of the Parent, the Borrowers and their respective Subsidiaries for the most recently completed fiscal year of the Borrower, multiplied by Parent minus (y) Cash Flow (i) the aggregate principal amount of Borrower and its Subsidiaries for such fiscal year (or, in Term Loans voluntarily prepaid by the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of Borrowers pursuant to Section 1.9(a) during such fiscal year, and (ii) the aggregate principal amount of Revolving Loans voluntarily prepaid by the Borrowers (to the extent accompanied by an equivalent permanent reduction of the Revolving Credit Commitment pursuant to Section 1.13(a) hereof) during such fiscal year, in each case, excluding the aggregate principal amount of any such voluntary prepayments made with the proceeds of incurrences of Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Line Revolving Credit (but, for the avoidance of Credit Loans (doubt, without any permanent reduction of in the Line of Revolving Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower Borrowers shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof or otherwise, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) If at any time the sum of the (i) aggregate Original Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount of Swing Loans and (iii) the aggregate U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of the Revolving Credit Commitments in effect at such time, the Borrowers shall promptly (but in any event within one (1) Business Day) upon notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Revolving Credit Lenders as a mandatory prepayment of the Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(vi) Unless the Borrower Representative otherwise directs, prepayments made under this Section 1.9(b) in U.S. Dollars shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans denominated in U.S. Dollars in the order in which their Interest Periods expire and prepayments made in Alternative Currencies under this Section 1.9(b) shall be applied to Borrowings in such Alternative Currency 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, in the case of any Term Loans or Eurocurrency Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearLoss, then (x) the Borrower 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 the Borrower or such any Restricted Subsidiary in respect thereof) and (y) promptly upon and, within five Business Days after the receipt by the Borrower or the Subsidiary of the such Net Cash Proceeds of such Disposition or such Event of LossProceeds, the Borrower shall prepay the Obligations relevant Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, 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 (x) each any Disposition and or Event of LossLoss not covered by clause (y) above, so long as no Event of Default has occurred and is continuing, if the Borrower states (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in its notice of such event assets that perform the same or similar function for the Borrower or the applicable Subsidiary intends to invest or reinvesta Restricted Subsidiary, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested reinvested in such assets or reinvested as described (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 Borrower’s notice with business of the Borrower or a Restricted Subsidiary, to the extent such 180-day period, and promptly Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 18012-day 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 Obligations relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness for Borrowed Money, other than that Indebtedness for Borrowed Money permitted by Section 6.11 hereof8.7 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 to be received by the Borrower or such Subsidiary in respect incurrence. Within five Business Days after receipt thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) , 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first by the Borrower to prepay the outstanding Term A Loans, CapEx Loans and Delayed Draw relevant Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On If the Borrower or before any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the date that is thirty Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco (30) days after such transaction also referred to herein as a “Sale/Leaseback Transaction”), in either case when the date annual Total Leverage Ratio on a Pro-Forma Basis giving effect to such Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are required available on or prior to the date such Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be delivered pursuant to Section 6.1(breceived by the Borrower or any Restricted Subsidiary in respect thereof) and, within five Business Days after the receipt of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013such Net Cash Proceeds, the Borrower shall prepay the then-outstanding relevant Term Loans by in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borroweramount of all such Net Cash Proceeds; provided, multiplied by that this subsection (yiii) shall not require any prepayment of Term Loans with the Net Cash Flow Proceeds of a Sale/Leaseback Transaction of a Principal Owned Property if the Borrower and its Subsidiaries for actually reinvests such fiscal year (orNet Cash Proceeds, within nine months of the receipt thereof, in the case of the fiscal year ending on one or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through more other Principal Owned Properties. Promptly after the end of such fiscal year) nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 received from the applicable Sale/Leaseback Transaction. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) accordance with this Section 1.9 until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of any Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving Loans, Swing Loans, and, if necessary, prefund 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 Line Revolving Loans, Swing Loans, and U.S. Dollar Equivalent of Credit Loans and all L/C Obligations then outstanding with respect to such Class to the amount to which the Line of 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 U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the Revolving Credit Commitments of such Class in effect at such time, the Borrower shall immediately and without notice or demand pay over the 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 applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the 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) No later than the Business Day occurring immediately after the day on which the Borrower receives proceeds from the sale (including a liquidating dividend) of all or any portion of any Investment permitted under Section 7.14(k), the Borrower shall make a mandatory prepayment of the Revolving Loans in the amount of such proceeds.
(ii) If on any March 31, June 30, September 30 or December 31 occurring after the date hereof 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 L/C Obligations exceeds the Revolving Commitments as then in effect, the Borrower shall 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 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 the amount of such Net Cash Proceeds.
(iv) To the extent Term Loans remain outstanding, if after the Effective 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 promptly notify the 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, 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 the amount of such Net Cash Proceeds.
(v) To the 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 or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearDisposition, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon 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 or such Event of LossDisposition, the Borrower shall prepay the Obligations Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Multicurrency Credit Agreement (Jones Lang Lasalle Inc)
Mandatory. (i) If the any Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than Dispositions permitted under Section 6.13(r)) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of U.S. $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrowers, then (x) the Borrower Borrowers 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 the such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the such Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 365 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorylike‑kind assets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s Borrowers’ notice with within such 180-day 365‑day period, and promptly . Promptly after the end of such 180-day 365‑day period, the Borrowers shall notify the Administrative Agent whether such Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrowers’ notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first then to the U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (in accordance with the outstanding Term principal amounts thereof) until all outstanding Revolving Loans until are paid in full and then to the Line of Credit U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (without any reduction in accordance with the Line of Credit Commitments) until paid in fulloutstanding principal amounts thereof).
(ii) If after the Closing Restatement Effective Date the any Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirementsany director, (C) equity securities issued in connection with the exercise manager, or employee as part of an employee stock optionsincentive program, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the such Borrower or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption the Borrower Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx U.S. Revolving Loans and Delayed Draw Term Canadian Revolving Loans pro rata on a ratable basis (in accordance with the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in full and then to the Line of Credit U.S. Swing Loans and Canadian Swing Loans on a ratable basis (without any reduction in accordance with the Line of Credit Commitments) until paid in fulloutstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their 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) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower Borrowers shall, on each date the Line of Credit U.S. Commitments are reduced pursuant to Section 2.102.9, prepay the Line of Credit U.S. Revolving Loans and, if necessary, prefund U.S. Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit U.S. Revolving Loans, U.S. Swing Loans and U.S. L/ C Obligations then outstanding to the amount to which the Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Commitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Loans and, if necessary, Canadian Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Canadian Revolving Loans, Canadian Swing Loans and Canadian L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced; and
(iv) Unless the Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Canadian CDOR 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.
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Mandatory. (i) If the Borrower or any Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary Guarantor in respect thereof) and (y) and, promptly upon receipt by the Borrower or the Subsidiary such Guarantor of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents or to the extent not so repaired or replaced, apply such Net Cash Proceeds to promptly prepay such Obligations, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions or Events of Loss during any fiscal year of the Borrower not exceeding $250,000 (the “Threshold Amount”) in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary relevant Guarantor intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets which were subject to such Disposition or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryBorrower’s or such Guarantor’s business, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 with such similar assets within such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Guarantor has reinvested such Net Cash Proceeds in such similar or other useful assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) reinvested, provided, that if at the end of such 180-day period such Net Cash Proceeds constituting are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of the Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so expended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360 days following the applicable Disposition. The amount of each such prepayment shall be applied, first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of business interruption insurance maintained such Disposition or Event of Loss shall be deposited with the Administrative Agent (or its 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 or in any permitted reinvestment.
(ii) If after the Closing Date the Borrower or applicable Subsidiary following any Guarantor shall issue new equity securities (whether common or preferred stock or otherwise), other than (A) any sales or issuances of equity securities to the Borrower or any Guarantor, or (B) equity securities of the Parent issued in connection with the exercise of employee stock options that do not give rise to Net Cash Proceeds in excess of $5,000,000 in the aggregate, or (C) restricted stock or restricted stock units issued in connection with the Stock Plan, the 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 Borrower or such Guarantor in respect thereof. Promptly upon receipt by the Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in an Event aggregate amount equal to the Equity Issuance Prepayment Percentage of Loss, no mandatory prepayment the amount of such Net Cash Proceeds Proceeds. The amount of each such prepayment shall be required under this clause applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Revolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.11 (iMaintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of the Loan Documents.
(iii) If after the Closing Date the Borrower or any Guarantor shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(n) hereof, the 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 Borrower or such Guarantor in respect thereof. Promptly upon receipt by the Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Revolving Credit. 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.
(iv) Within 100 days after the end of each fiscal year of the Borrower (commencing with fiscal year ending December 31, 2011), the Borrower shall prepay the Obligations by an amount equal to (x) the Excess Cash Flow Prepayment Percentage of Excess Cash Flow of the Parent, the Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower minus (y) the aggregate principal amount of Term Loans voluntarily prepaid by the Borrower pursuant to Section 1.9(a) during such fiscal year (excluding the aggregate principal amount of any such voluntary prepayments made with the proceeds of incurrences of Indebtedness for Borrowed Money). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullRevolving Credit.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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.
(ivv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof or otherwise, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(vi) Unless the Borrower otherwise directs, prepayments of Loans 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, in the case of any Term Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
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Mandatory. (iA) If the Immediately upon any voluntary or involuntary (including casualty losses or condemnations) sale or disposition by any Borrower or any Subsidiary its Subsidiaries of property or assets (other than sales or dispositions which qualify as Permitted Dispositions), such Borrower shall at any time prepay, without penalty or from time to time make a Disposition or shall suffer an Event of Loss resulting premium, the outstanding Obligations in Net Cash Proceeds accordance with clause (d) below in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions to the extent that the aggregate amount of all such Net Cash ProceedsProceeds received by Borrowers and its Subsidiaries (and not paid to Agent as a prepayment of the Obligations) for all such sales or dispositions shall exceed $250,000 in any fiscal year; provided, in the case of (x) each Disposition and Event of Losshowever, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvestthat, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as (1) no Default or Event of Default then existsshall have occurred and is continuing, the (2) Administrative Borrower shall not be required have given Agent prior written notice of Borrowers’ and their respective Subsidiaries’ intention to make a mandatory prepayment under this Section in respect apply such monies to the costs of replacement of the property or assets which are the subject of such Net Cash Proceeds sale or disposition or the cost of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries, (3) the monies are held in a cash collateral account in which Agent has a perfected security interest (if requested by Agent, in its sole discretion), and (4) a Borrower or a Subsidiary of a Borrower completes such replacement, purchase or construction within 180 days after the initial receipt of such monies, such Borrower shall have the option to apply such monies to the costs of replacement of the property or assets which are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries unless and to the extent that such Net Cash Proceeds are actually invested applicable period shall have expired without such replacement, purchase or reinvested as described construction being made or completed, in which case, any amounts remaining in the Borrower’s notice cash collateral account shall be paid to Agent and applied as set forth above. Nothing contained in this subclause (A) shall permit any Borrower or its Subsidiaries to sell or otherwise dispose of any property or assets other than in accordance with Section 6.4.
(B) Immediately upon the receipt by any Borrower or its Subsidiaries of any Extraordinary Receipts in any fiscal year, such 180-day periodBorrower shall prepay, and promptly after without premium or penalty, the end outstanding Obligations in accordance with clause (d) below in an amount equal to 100% of such 180-day periodExtraordinary Receipts, the Borrower shall promptly prepay the Obligations in net of the amount of any Senior Creditor Indebtedness which is required to be, and is, repaid in connection with such Net Cash Proceeds not so invested or reinvested receipt and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of any reasonable expenses incurred in collecting such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullExtraordinary Receipts.
(iiC) If after Immediately upon the Closing Date the issuance or incurrence by any Borrower or its Subsidiaries of any Subsidiary shall issue any new equity securities Indebtedness (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof6.1), or the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the any Borrower or its Subsidiaries of any shares of its or their Stock (other than Excluded Issuances), such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the outstanding principal of the Obligations in the accordance with clause (d) in an amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) % of the Net Cash Proceeds received by such Borrower or its Subsidiaries in connection with such issuance or incurrence. The provisions of the incurrence of this subsection (C) shall not be deemed to be implied consent to any such Indebtedness. The amount of each such prepayment shall be applied first to issuance or incurrence otherwise prohibited by the outstanding Term A Loans, CapEx Loans terms and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms conditions of this Agreement.
(iiiD) On or before Immediately upon the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) occurrence of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013a Merger Termination Event, the Borrower Borrowers shall prepay the then-outstanding Loans by Obligations plus an additional amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 30% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The outstanding principal amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount as of such voluntary prepaymentstermination. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were made; provided thatSUCH ADDITIONAL AMOUNT IS NOT A PENALTY, the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zeroBUT REPRESENTS LIQUIDATED DAMAGES IN CONNECTION WITH OCCURRENCE OF A MERGER TERMINATION EVENT. THE PARTIES AGREE THAT IT WOULD BE IMPRACTICABLE AND EXTREMELY DIFFICULT TO ASCERTAIN THE ACTUAL DAMAGES SUFFERED BY THE LENDERS AS A RESULT OF THE OCCURRENCE OF SUCH MERGER TERMINATION EVENT, 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 madeAND THAT UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION REPRESENTS A REASONABLE ESTIMATE OF THE DAMAGES WHICH THE LENDERS WILL INCUR AS A RESULT OF SUCH OCCURRENCE, PROVIDED, HOWEVER, THAT THIS PROVISION SHALL NOT LIMIT THE LENDERS’ RIGHT TO RECEIVE REIMBURSEMENT FOR ATTORNEYS’ FEES, NOR WAIVE OR AFFECT THE LENDERS’ RIGHT AND THE BORROWERS’ OBLIGATIONS UNDER OTHER SECTIONS OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS OR THE MERGER AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE PAYMENT OF SUCH LIQUIDATED DAMAGES IS NOT INTENDED AS A FORFEITURE OR PENALTY, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO THE LENDERS. NOTWITHSTANDING THE FOREGOING, IF THE BORROWERS INTERFERE WITH OR MAKE ANY ATTEMPT TO INTERFERE WITH THE LENDERS RECEIVING OR RETAINING, AS THE CASE MAY BE, THE LIQUIDATED DAMAGES PROVIDED FOR IN THIS SECTION, THE LENDERS SHALL HAVE THE RIGHT TO ELECT TO RECOVER THE GREATER OF ITS ACTUAL DAMAGES OR THE LIQUIDATED DAMAGES BY GIVING WRITTEN NOTICE TO THE BORROWERS AND THE LENDERS SHALL HAVE ALL OTHER RIGHTS AND REMEDIES AGAINST THE BORROWERS PROVIDED AT LAW AND IN EQUITY.
(ivE) The Borrower shallNotwithstanding the foregoing provisions of this Section 2.4(c)(ii), on each date the Line no mandatory prepayments of Credit Commitments are reduced Obligations shall be required pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum Sections 2.4(c)(ii)(A) through (C) until a Discharge of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedSenior Creditor Indebtedness has occurred.
Appears in 1 contract
Samples: Credit Agreement (Buca Inc /Mn)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition (other than a Sale/Leaseback Transaction with respect to a Principal Owned Property which shall be subject to subsection (iii) below) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearLoss, then (x) the Borrower 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 the Borrower or such any Restricted Subsidiary in respect thereof) and and, within five (y5) promptly upon Business Days after the receipt by the Borrower or the Subsidiary of the such Net Cash Proceeds of such Disposition or such Event of LossProceeds, the Borrower shall prepay first, the Obligations relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that this subsection shall not require any such prepayment with respect to Net Cash Proceeds (x) 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 (y) other than during the Basket Suspension Period, in the case of any Disposition or Event of Loss not covered by clause (x) each Disposition and above, so long as no Event of LossDefault has occurred and is continuing, if the Borrower states (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in its notice of such event assets that perform the same or similar function for the Borrower or the applicable Subsidiary intends to invest or reinvesta Restricted Subsidiary, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested reinvested in such assets or reinvested as described (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 Borrower’s notice with business of the Borrower or a Restricted Subsidiary, to the extent such 180-day period, and promptly Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 18012-day 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 first, the Obligations relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Revolving Loans (without any with a permanent reduction in of the Line of relevant Revolving Credit Commitments) 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 any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness for Borrowed Money, other than that Indebtedness for Borrowed Money permitted by Section 6.11 hereof8.7 (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 to be received by the Borrower or such Subsidiary in respect incurrence. Within five (5) Business Days after receipt thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) , 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first by the Borrower to prepay the outstanding relevant Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit relevant Revolving Loans (without any with a permanent reduction in of the Line of relevant Revolving Credit Commitments) 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 6.11 8.7 or any other terms of this Agreementthe Loan Documents.
(iii) On If the Borrower or before any Restricted Subsidiary shall at any time or from time to time enter into a Sale/Leaseback Transaction with respect to a Principal Owned Property or sell the date that is thirty Equity Interests issued by a Principal Owned Property Holdco and thereafter lease the Principal Owned Property owned by such Principal Owned Property Holdco, other than any such transaction with respect to one or more Specified Sale/Leaseback Properties during the Basket Suspension Period (30) days after such transaction also referred to herein as a “Prepayment Sale/Leaseback Transaction”), in either case when the date annual Total Leverage Ratio on a Pro-Forma Basis giving effect to such Prepayment Sale/Leaseback Transaction and the application of the Net Cash Proceeds thereof as of the last day of the most recently ended fiscal quarter for which financial statements are required available on or prior to the date such Prepayment Sale/Leaseback Transaction is consummated exceeds 2.50 to 1.00, the Borrower shall promptly notify the Administrative Agent of such Prepayment Sale/Leaseback Transaction (including the amount of the estimated Net Cash Proceeds to be delivered pursuant to Section 6.1(breceived by the Borrower or any Restricted Subsidiary in respect thereof) and, within five (5) Business Days after the receipt of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013such Net Cash Proceeds, the Borrower shall prepay first, the then-outstanding Loans by relevant Term Loans, and second, the relevant Revolving Loans, together with a commensurate permanent reduction of the relevant Revolving Credit Commitments, in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borroweramount of all such Net Cash Proceeds; provided, multiplied by that this subsection (yiii) shall not require any prepayment of Term Loans or Revolving Loans with the Net Cash Flow Proceeds of a Prepayment Sale/Leaseback Transaction of a Principal Owned Property if the Borrower and its Subsidiaries for actually reinvests such fiscal year (orNet Cash Proceeds, within nine months of the receipt thereof, in the case of the fiscal year ending on one or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through more other Principal Owned Properties. Promptly after the end of such fiscal year) nine-month period, the Borrower shall notify the Administrative Agent whether the Borrower or a Restricted Subsidiary has so 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 or Revolving Loans in the amount of such Net Cash Proceeds received from the applicable Prepayment Sale/Leaseback Transaction. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Revolving Loans (without with a permanent reduction of the Line of relevant Revolving Credit CommitmentCommitments) in accordance with this Section 1.9 until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date At the Line end of Credit Commitments are reduced pursuant to Section 2.10, prepay any Business Day from and after the Line Second Amendment Effective Date until the end of Credit Loans andthe Basket Suspension Period, if necessaryHoldings, prefund the L/C Obligations by Borrower and their Restricted Subsidiaries hold Unrestricted cash and Cash Equivalents in excess of $100,000,000, then the amountBorrower shall promptly (and in any event within two (2) Business Days) apply such amounts in excess of $100,000,000 first, if anyto prepay outstanding Swing Loans, necessary and second, to reduce the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then prepay outstanding to the amount to which the Line of Credit Commitments have been so reducedRevolving Loans.
Appears in 1 contract
Samples: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Mandatory. (i) If [Reserved].
(ii) [Reserved].
(iii) Subject to the Borrower terms of the Senior Subordination Agreement, on the fifth Business Day after the date of any Asset Sale by the Parent or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Lossits Subsidiaries, the Borrower shall Borrowers will prepay the Obligations Term Loan hereunder in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event such Asset Sale received by the Parent or any of Lossits Subsidiaries on the date of such Asset Sale. Notwithstanding the foregoing, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then existshas occurred and is continuing, the Borrower Borrowers shall not be required to make a mandatory any prepayment of the Term Loan under this Section 2.03(b)(iii) with respect to Net Cash Proceeds received by the Parent or any of its Subsidiaries from Asset Sales to the extent that, on or prior to the date such Net Cash Proceeds would otherwise be required to be so applied the Parent notifies the Administrative Agent that such Net Cash Proceeds are to be reinvested in respect assets used or usable in the business of the Parent or any of its Subsidiaries within 180 days of each such Asset Sale, and if such Net Cash Proceeds to be reinvested are not in fact reinvested within 180 days after receipt thereof, then such proceeds shall be due and payable, and, in each case, applied to the extent such Net Cash Proceeds are actually invested or reinvested prepayment of the Term Loan as described provided in this clause (iii) at the Borrower’s notice with such 180-day period, and promptly after the end expiration of such 180-day period, the Borrower shall promptly prepay the Obligations in ); provided that the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory applied to prepayment of such Net Cash Proceeds shall be required under the Term Loan because of this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges that its performance hereunder sentence shall not limit exceed $1,000,000 over the rights and remedies of the Lenders for any breach of Section 6.11 or any other terms term of this Agreement.
(iiiiv) On Subject to the terms of the Senior Subordination Agreement, on the fifth Business Day after any incurrence of Indebtedness by the Parent or before any of its Subsidiaries (other than Indebtedness expressly permitted pursuant to Section 7.03), the Borrowers will prepay the Term Loan hereunder in an aggregate amount equal to 100% of the amount of the Net Cash Proceeds from such incurrence of Indebtedness received by the Parent or any of its Subsidiaries.
(v) Subject to the terms of the Senior Subordination Agreement, on the fifth Business Day after the closing of any offering or sale of Equity Interests by or any capital contribution to the Parent (other than any Excluded Contribution), the Borrowers will prepay the Term Loan hereunder in an aggregate amount equal to 100% of the Net Cash Proceeds from such offering or sale of Equity Interests after satisfaction of the mandatory prepayment requirement set forth in Section 2.03(b)(v) in the Senior Loan Agreement provided that (x) if the Senior Leverage Ratio is less than 2.75 to 1.00 but greater than or equal to 2.25 to 1.00 without giving effect to such issuance and the application of the proceeds thereof for the period of four consecutive quarters most recently ended and for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b), the Borrowers will prepay the Term Loan hereunder in an aggregate amount equal to 25% of the Net Cash Proceeds from such offering or sale of Equity Interests after satisfaction of the mandatory prepayment requirement set forth in Section 2.03(b)(v) in the Senior Loan Agreement and (y) if the Senior Leverage Ratio is less than 2.25 to 1.00 without giving effect to such issuance and the application of the proceeds thereof for the period of four consecutive fiscal quarters most recently ended and for which financial statements are required to have been delivered pursuant to Section 6.01(a) and (b), the Borrowers will prepay the Term Loan hereunder in an aggregate amount equal to 50% of the Net Cash Proceeds from such offering or sale of Equity Interests remaining after satisfaction of the mandatory prepayment requirement set forth in Section 2.03(b)(v) in the Senior Loan Agreement. Notwithstanding the foregoing, the Borrowers will make such prepayments in respect of any Net Cash Proceeds constituting a Cure Amount in an amount equal to 100% of such Net Cash Proceeds.
(vi) Subject to the terms of the Senior Subordination Agreement, on the tenth Business Day after the receipt by the Parent or any of its Subsidiaries of the proceeds of insurance, condemnation award or other compensation (other than business interruption insurance proceeds) in respect of any Casualty Event affecting any property or assets of the Parent or any of its Subsidiaries, the Borrowers shall prepay the Term Loan in an aggregate amount equal to 100% of the Net Cash Proceeds from such Casualty Event, provided that the Borrowers shall not be required to make any prepayment of the Term Loan under this Section 2.03(b)(vi) with respect to Net Cash Proceeds received by any Borrower or any of its Subsidiaries from Casualty Events to the extent if, at the time proceeds of insurance, condemnation award or other compensation (other than business interruption insurance proceeds) in respect of such Casualty Event are received, no Event of Default shall have occurred and be continuing, to the extent that, on or prior to the date such Net Cash Proceeds would otherwise be required to be so applied the Parent notifies the Administrative Agent that is thirty such Net Cash Proceeds from such Casualty Event are to be reinvested in the repair, restoration or replacement of the property affected by such Casualty Event or in other assets used or usable in the business of the Borrowers and their Subsidiaries within 180 days of the receipt of such proceeds, and if such Net Cash Proceeds intended to be reinvested are not in fact reinvested then such proceeds shall be due and payable and applied to the prepayment of the Term Loan as provided in this clause (30v) days at the expiration of such 180-day period).
(vii) Subject to the terms of the Senior Subordination Agreement, not later than the fifth Business Day after the date on which the annual financial statements are required to be delivered pursuant to Section 6.1(b) of each for any fiscal year, year (beginning with the fiscal year ending June 30, 2015) pursuant to Section 6.01(a), if the Total Leverage Ratio is greater than or equal to 2.00 to 1.00 for the Test Period ending on or about December 31, 2013the last day of such fiscal year, the Borrower shall Borrowers will prepay the then-outstanding Loans by Term Loan hereunder in an aggregate amount equal to 75% (x) or if the applicable ECF Percentage Total Leverage Ratio is less than 2.50 to 1.00 but greater than or equal to 2.00 to 1.00 for the most recently completed Test Period ending on the last day of such fiscal year year, 50%) of the Borrower, multiplied by (y) Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year prepayment under this clause (vii) for the period ending on or about December 31June 30, 20132015, for the period commencing of two consecutive fiscal quarters ending on such date) minus the first day aggregate amount of voluntary prepayments of the first month following Term Loan.
(viii) Subject in all events to the Restatement Effective Date through terms of the end Senior Subordination Agreement, (A) each prepayment of such fiscal yearthe Term Loan pursuant to this Section 2.03(b) . The amount shall be applied to the Term Loan then outstanding (and applied pro rata to the remaining installments thereof in inverse order of maturity), and (B) each such prepayment shall be applied first paid to the outstanding Term Loans until paid Lenders in full accordance with their respective Pro Rata Shares of such prepayment, and then to shall be accompanied by the Line of Credit Loans (without reduction payment of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal Prepayment Premium for the account of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were madeLenders; provided that, (1) solely in 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) The Borrower shall, on each date the Line case of Credit Commitments are reduced a prepayment pursuant to Section 2.102.03(b)(v), prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary Prepayment Premium with respect to reduce the sum prepayments of the aggregate principal amount first $1 through $5,000,000 of Line the Term Loan with such proceeds shall equal 0% of Credit Loans such prepayments up to $5,000,000, and L/C Obligations then outstanding any prepayments greater than $5,000,000 made pursuant to Section 2.03(b)(v) shall be subject to the amount otherwise applicable Prepayment Premium required hereunder, (2) in the case of a prepayment pursuant to which Section 2.03(b)(vii), no Prepayment Premium shall be required, and (3) any prepayment of an Additional Tranche shall not be subject to the Line of Credit Commitments have been so reducedPrepayment Premium.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 500,000 individually or $1,000,000 on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $500,000 individually or $1,000,000 on a cumulative basis in any fiscal year of the Borrower; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorybusiness, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with within such one hundred eighty (180-) day period, and promptly . 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 Borrower not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Revolving Loans until paid in full and then to the Line of Credit Loans (without any a permanent reduction of the Revolving Credit Commitments). 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 Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Restatement Effective Date the Borrower or any Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Revolving Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any a permanent reduction in of the Line of Revolving Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before If at any time the date that is thirty 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 (30and, in any event, within one (1) days Business 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 applied to the Revolving Loans until payment in full thereof (without a permanent reduction of the Revolving Credit Commitments), with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iv) If after the date annual financial statements are required Restatement Effective Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, Obligations in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Revolving Loans until paid in full and then to the Line of Credit Loans (without a permanent reduction of the Line of Revolving Credit Commitment) until paid in fullCommitments). Any voluntary prepayments of principal The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by the amount breach of such voluntary prepayments, the amount required to be paid by the Borrower under Section 6.11 or any other terms of this Section 2.8(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 madeAgreement.
(ivv) [reserved].
(vi) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund 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 Line of Credit Revolving Loans and L/C Obligations then outstanding to the amount to which the Line of 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 the 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) If To the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of extent that the Net Cash Proceeds of such Disposition any Asset Sale or such Event Extraordinary Receipt exceeds $15,000,000 per Asset Sale or receipt of LossExtraordinary Receipts, the Borrower shall deliver the notice required under Section 6.3(c) hereunder (it being agreed and understood that failure to deliver such notice shall not constitute a Default or Event of Default hereunder) and prepay an aggregate principal amount of Loans equal to 100% of such excess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in good faith intends to use such Net Cash Proceeds to acquire, improve or maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the 365th day after such Asset Sale to the extent that, within such 365 day period, the Relevant Parties have not used such Net Cash Proceeds for such purpose, provided, that prepayment shall be required in an amount equal to 100% of such Net Cash Proceeds promptly after any earlier date on which the Borrower has determined not to use such Net Cash Proceeds for any such purpose) (all such prepayments to be applied as set forth in clause (iii) below).
(ii) If for any reason the Total Outstandings at any time exceed the Aggregate Commitments, the Borrower shall immediately prepay 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 100% of the amount of all such Net Cash Proceedsexcess; provided, in the case of (x) each Disposition and Event of Losshowever, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under Cash Collateralize the L/C Obligations pursuant to 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 with such 180-day period, and promptly 2.4(b) unless after the end prepayment in full of such 180-day periodthe Loans and L/C Borrowings, the Borrower shall promptly prepay Total Outstandings exceed the Obligations Aggregate Commitments then in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreementeffect.
(iii) On or before Prepayments of the date that is thirty (30) days after the date annual financial statements are required to be delivered Facility made pursuant to this Section 6.1(b2.4(b) of each fiscal yearshall be applied, beginning with first, ratably to the fiscal year ending on or about December 31L/C Borrowings, 2013second, ratably to the Borrower shall prepay outstanding Swingline Borrowings, third, ratably to the then-outstanding Base Rate Loans by an amount equal (other than the Swingline Loans), fourth, ratably to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borroweroutstanding Eurodollar Rate Loans, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (orfifth, in the case of prepayments under Section 2.4(b)(ii) only, to Cash Collateralize the fiscal year ending on or about December 31remaining L/C Obligations; and, 2013, for in the period commencing on the first day case of prepayments of the first month following Facility required pursuant to clause (i) or (ii) of this Section 2.4(b), the Restatement Effective Date through amount remaining, if any, after the end prepayment in full of all L/C Borrowings and Loans outstanding at such fiscal yeartime and, in the case of prepayments under Section 2.4(b)(ii) only, the Cash Collateralization of the remaining L/C Obligations in full, may be retained by the Borrower. The amount Upon the drawing of each such prepayment any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, further action by the amount of such voluntary prepayments, the amount required or notice to be paid by or from the Borrower under this Section 2.8(b)(iiior any other Loan Party) 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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund reimburse the L/C Obligations by Issuer or the amountLenders, if any, necessary to reduce the sum as applicable. Prepayments of the aggregate principal amount Facility made pursuant to this Section 2.4(b) shall not result under any circumstance in a permanent reduction of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedCommitments.
Appears in 1 contract
Mandatory. (iA) If the Immediately upon any voluntary or involuntary (including casualty losses or condemnations) sale or disposition by any Borrower or any Subsidiary its Subsidiaries of property or assets (other than sales or dispositions which qualify as Permitted Dispositions), such Borrower shall at any time prepay, without penalty or from time to time make a Disposition or shall suffer an Event of Loss resulting premium, the outstanding Obligations in Net Cash Proceeds accordance with clause (d) below in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the Net Cash Proceeds (including condemnation awards and payments in lieu thereof) received by such Person in connection with such sales or dispositions to the extent that the aggregate amount of all such Net Cash ProceedsProceeds received by Borrowers and its Subsidiaries (and not paid to Agent as a prepayment of the Obligations) for all such sales or dispositions shall exceed $250,000 in any fiscal year; provided, in the case of (x) each Disposition and Event of Losshowever, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvestthat, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as (1) no Default or Event of Default then existsshall have occurred and is continuing, the (2) Administrative Borrower shall not be required have given Agent prior written notice of Borrowers’ and their respective Subsidiaries’ intention to make a mandatory prepayment under this Section in respect apply such monies to the costs of replacement of the property or assets which are the subject of such Net Cash Proceeds sale or disposition or the cost of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries, (3) the monies are held in a cash collateral account in which Agent has a perfected first-priority security interest, (4) Borrowers have Excess Availability of not less than $3,500,000 as of the date on which Agent receives the notice set forth in clause (2) above, and (5) a Borrower or a Subsidiary of a Borrower completes such replacement, purchase or construction within 180 days after the initial receipt of such monies, such Borrower shall have the option to apply such monies to the costs of replacement of the property or assets which are the subject of such sale or disposition or the costs of purchase or construction of other assets useful in the business of any of the Borrowers or their respective Subsidiaries unless and to the extent that such Net Cash Proceeds are actually invested applicable period shall have expired without such replacement, purchase or reinvested as described construction being made or completed, in which case, any amounts remaining in the Borrower’s notice with such 180-day period, cash collateral account shall be paid to Agent and promptly after the end of such 180-day period, the Borrower applied as set forth above. Nothing contained in this subclause (A) shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the permit any Borrower or applicable Subsidiary following an Event its Subsidiaries to sell or otherwise dispose of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid any property or assets other than in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullaccordance with Section 6.4.
(iiB) If after Immediately upon the Closing Date the receipt by any Borrower or its Subsidiaries of any Subsidiary Extraordinary Receipts in any fiscal year, such Borrower shall issue prepay, without premium or penalty, the outstanding Obligations in accordance with clause (d) below in an amount equal to 100% of such Extraordinary Receipts, net of any new equity securities reasonable expenses incurred in collecting such Extraordinary Receipts.
(C) Immediately upon the issuance or incurrence by any Borrower or its Subsidiaries of any Indebtedness (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof6.1), or the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the any Borrower or its Subsidiaries of any shares of its or their Stock (other than Excluded Issuances), such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the outstanding principal of the Obligations in the accordance with clause (d) in an amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) % of the Net Cash Proceeds of the incurrence of any received by such IndebtednessBorrower or its Subsidiaries in connection with such issuance or incurrence. The amount of Concurrent with each such prepayment prepayment, Borrowers shall be applied first pay to Agent, for the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies ratable account of the Lenders for holding the Obligations prepaid, the applicable prepayment premium as set forth in the Fee Letter. The provisions of this subsection (C) shall not be deemed to be implied consent to any breach of Section 6.11 such issuance or any other incurrence otherwise prohibited by the terms and conditions of this Agreement.
(iiiD) On or before Within 10 days of delivery to Agent and Lenders of audited financial statements pursuant to Section 5.3, commencing with the delivery to Agent and Lenders of the financial statements for the fiscal year 2005 or, if such financial statements are not delivered to Agent and Lenders on the date that is thirty (30) days after the date annual financial such statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year5.3, beginning with 10 days after the fiscal year ending on date such statements are required to be delivered to Agent and Lenders pursuant to Section 5.3, Borrowers shall prepay, without penalty or about December 31, 2013premium, the Borrower shall prepay outstanding principal amount of the then-outstanding Term Loans by and the Advances in accordance with clause (d) in an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 50% of the Borrower, multiplied by (y) Excess Cash Flow of Borrower Borrowers and its their Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Buca Inc /Mn)
Mandatory. (i) If the Borrower any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 individually or on a cumulative basis in any fiscal yearyear of Credit Parties, then (x) the Borrower Representative 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 the Borrower such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within five (5) Business Days) upon receipt by the Borrower any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower Representative states in its notice of such event that the Borrower applicable Credit Party or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 the BorrowerBorrower Representative’s notice with such 180-day period, and promptly . Promptly after the end of such 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 and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Restatement Closing Date the Borrower (x) there shall occur an IPO involving Holdings or any IPO Issuer or any other Credit Party, or (y) any Credit Party or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (Ca) equity securities issued in connection with the exercise of employee stock options, and (Db) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted the exercise of the Cure Right, (c) equity securities issued by the terms hereofa Subsidiary to another Credit Party, if any(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 (other than that permitted by Section 6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the Borrower account of such Credit Party or such Subsidiary in respect thereof. Promptly 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 the Borrower such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence the Borrower assumption (other than an IPO) Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) until paid in fullthe Revolving Loans, Swing Loans and Reimbursement Obligations. The Borrower 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) On or before the date that is thirty No later than five (305) days Business Days after the date annual earlier of (a) receipt by Agent of the audited financial statements are required to be delivered pursuant to by Section 6.1(b) hereof and (b) the due date of each fiscal yearthe delivery of the audited financial statements required by Section 6.1(b) hereof, beginning with the fiscal year ending on or about December 31June 30, 20132014, the Borrower Borrowers shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage 50% of Excess Cash Flow of Credit Parties and their Subsidiaries for the most recently completed fiscal year of the BorrowerCredit Parties; provided, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (orhowever, in the case of that, commencing with the fiscal year ending on or about December 31June 30, 20132015, for if the period commencing on Senior Leverage Ratio (determined as of the first last day of such fiscal year and any fiscal year thereafter by reference to the first month following Compliance Certificate delivered together with the Restatement Effective Date through the end of financial statements delivered pursuant to Section 6.1(b) for such fiscal year) is less than 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 applied first to the outstanding Term Loan until paid in 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 full, and, then to (in the Line of order determined by Agent but without a reduction in Revolving Credit Loans (Commitments) the Revolving Loans, Swing Loans, Reimbursement Obligations, without any reduction of the Line of Credit Commitment) until paid in fullcommitments. 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 the Borrower Borrowers under this Section 2.8(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) The Borrower Borrowers shall, (A) on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, prefund Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum amount of the aggregate principal amount Revolving Credit Exposures of Line of Credit Loans and L/C Obligations all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Line of Revolving Credit Commitments have been so reducedreduced 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), 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 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 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 7.4.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) If the Borrower any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 individually or on a cumulative basis in any fiscal yearyear of Credit Parties, then (x) the Borrower Representative 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 the Borrower such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within two (2) Business Days) upon receipt by the Borrower any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower Representative states in its notice of such event that the Borrower applicable Credit Party or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the BorrowerBorrower Representative’s notice with within such one hundred eighty (180-) day period, and promptly . 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 and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Draw Term Loans until paid in full and then (applied on a pro rata basis to the Line of Credit remaining principal amortization payments thereof), second to the outstanding Incremental Term Loans (without any reduction in the Line of Credit Commitmentsif any) until paid in fullfull (applied on a pro rata basis to the remaining principal amortization payments thereof) and, then to (in the order determined by Agent) the Revolving Loans, Swing Loans and the Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date the Borrower Date, any Credit Party or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) incur or incur assume any Indebtedness (other than that permitted by Section 6.11 hereof), the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrence assumption to be received by or for the Borrower account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within two (2) Business Days) upon receipt by the Borrower such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance incurrence or incurrence the Borrower assumption Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then (applied on a pro rata basis to the Line of Credit remaining principal amortization payments thereof), second to the outstanding Incremental Term Loans (without any reduction in the Line of Credit Commitmentsif any) until paid in fullfull (applied on a pro rata basis to the remaining principal amortization payments thereof) and, then to (in the order determined by Agent) the Revolving Loans, Swing Loans and Reimbursement Obligations. The Borrower 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) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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[Reserved].
(iv) The Borrower Borrowers shall, (A) on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay first (in the Line order determined, without the necessity of Credit Loans demand by Agent), the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum amount of the aggregate principal amount Revolving Credit Exposures of Line of Credit Loans and L/C Obligations all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Line of Revolving Credit Commitments have been so reducedreduced and (B) on each date the aggregate amount of Revolving Credit Exposures of all Lenders then outstanding exceeds the lesser of (x) the Leverage Limit (as determined based on the most recent Compliance Certificate) minus the L/C Obligations and (y) the total Revolving Credit Commitments, prepay first (in the order determined by Agent), the Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, prefund the L/C Obligations in an amount equal to such excess.
(v) [Reserved].
(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 and Daily Floating LIBOR 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 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 7.4.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Addus HomeCare Corp)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower shall promptly notify the Administrative Agent Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of Borrower not exceeding $250,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if Borrower states in its notice of such event that Borrower intends to reinvest, within 90 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, Borrower shall notify Bank whether Borrower has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans Loan until paid in full and then to cash collateralize the Line Bond L/C. If Bank so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with Bank (without any reduction or its agent) and held by it in a collateral account for the Line benefit of Credit Commitments) until paid in fullBank (the “Collateral Account”). So long as no Default or Event of Default exists, Bank is authorized to disburse amounts representing such proceeds from the Collateral Account to or at 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 Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirementsHoldings or Parent, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent Bank of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the account of Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the issuance, Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata Loan until paid in full and then to cash collateralize the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Bond L/C. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders Bank for any breach of Section 6.11 6.19 or Section 7.1(c) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date Borrower shall issue any Indebtedness, other than Indebtedness permitted by Section 6.5 hereof, Borrower shall promptly notify Bank of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal yearBorrower in respect thereof. Promptly upon receipt by Borrower of Net Cash Proceeds of such issuance, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans Loan until paid in full and then to cash collateralize the Line Bond L/C. Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Credit Loans (without reduction Bank for any breach of Section 6.7 hereof or any other terms of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Landec Corp \Ca\)
Mandatory. (i) If When the aggregate amount of Excess Proceeds resulting from Asset Sales permitted by Section 6.13 exceeds $20,000,000, the Borrower or will apply 100% of such excess amount of the Excess Proceeds ratably to the repayment of the Obligations as follows: first, to the L/C Borrowings and the Swing Line Loans, second, to the outstanding Committed Loans, and, third, 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 Committed Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “Reduction Amount”) may be retained by the Borrower for use in the ordinary course of its business; provided, that the Aggregate Commitments shall not be reduced as a result of any Subsidiary such prepayment. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05.
(ii) If for any reason the Total Outstandings at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting exceed the Aggregate Commitments then in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Losseffect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsexcess; provided, in the case of (x) each Disposition and Event of Losshowever, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund Collateralize the L/C Obligations by pursuant to this Section 2.05(c) unless after the amount, if any, necessary to reduce the sum prepayment in full of the aggregate principal amount of Line of Credit Loans and L/C Obligations the Total Outstandings exceed the Aggregate Commitments then outstanding to the amount to which the Line of Credit Commitments have been so reducedin effect.
Appears in 1 contract
Mandatory. (i) If the any Borrower or any Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower Representative 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 the such Borrower or such Subsidiary Guarantor in respect thereof) and (y) and, promptly upon receipt by the such Borrower or the Subsidiary such Guarantor of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of this subsection shall not require any such event that the Borrower or the applicable Subsidiary intends prepayment with respect to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event received on account of Loss, Dispositions or Events of Loss during any fiscal year of the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful Parent not exceeding $500,000 (the “Threshold Amount”) in the Borrower and its Subsidiaries’ business other than inventory, then aggregate so long as no Default or Event of Default then exists, and (y) in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or Event of Default then exists, if the Borrower Representative states in its notice of such event that the relevant Borrower or the relevant Guarantor intends to reinvest, within 180360 days of the applicable Disposition or Event of Loss, the Net Cash Proceeds thereof in Property similar to the Property which were subject to such Disposition or other assets useful in such Borrower’s or such Guarantor’s business, then the Borrowers shall not be required to make a mandatory prepayment under this Section subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested reinvested in such similar Property or reinvested as described such other Property useful in the such Borrower’s notice with or such 180Guarantor’s business within such 180360-day period, and promptly . Promptly after the end of such 180180360-day period, the Borrower Representative shall notify the Administrative Agent whether such Borrower or such Guarantor has reinvested such Net Cash Proceeds in such similar or other useful Property, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) reinvested, provided, that if at the end of such 180360-day period such Net Cash Proceeds constituting proceeds are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of business interruption insurance maintained the Borrower Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so expended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360540 days following the applicable Disposition or applicable Subsidiary following an Event of Loss. The amount of each such prepayment shall be applied, first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment). 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 (or its agent) and held by it in the Collateral Account. So long as no mandatory prepayment 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 Representative’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property or in any permitted reinvestment.
(ii) If after the Closing Date any Borrower or any Guarantor shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower Representative 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 Guarantor in respect thereof. Promptly upon receipt by such Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds shall be required under this clause (i)Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessRevolving Credit. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) Within 100 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning year of the Parent (commencing with the fiscal year ending on or about December 31, 201320142015), the Borrower Borrowers shall prepay the then-outstanding Loans Obligations by an amount equal to (x) the applicable ECF Excess Cash Flow Prepayment Percentage of Excess Cash Flow of the Parent, the Borrowers and their respective Subsidiaries for the most recently completed fiscal year of the Borrower, multiplied by Parent minus (y) Cash Flow (i) the aggregate principal amount of Borrower and its Subsidiaries for such fiscal year (or, in Term Loans voluntarily prepaid by the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of Borrowers pursuant to Section 1.9(a) during such fiscal year, and (ii) the aggregate principal amount of Revolving Loans voluntarily prepaid by the Borrowers (to the extent accompanied by an equivalent permanent reduction of the Revolving Credit Commitment pursuant to Section 1.13(a) hereof) during such fiscal year, in each case, excluding the aggregate principal amount of any such voluntary prepayments made with the proceeds of incurrences of Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Line Revolving Credit (but, for the avoidance of Credit Loans (doubt, without any permanent reduction of in the Line of Revolving Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower Borrowers shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof or otherwise, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) If at any time the sum of the (i) aggregate Original Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount of Swing Loans and (iii) the aggregate U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of the Revolving Credit Commitments in effect at such time, the Borrowers shall promptly (but in any event within one (1) Business Day) upon notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Revolving Credit Lenders as a mandatory prepayment of the Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(vi) Unless the Borrower Representative otherwise directs, prepayments made under this Section 1.9(b) in U.S. Dollars shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans denominated in U.S. Dollars in the order in which their Interest Periods expire and prepayments made in Alternative Currencies under this Section 1.9(b) shall be applied to Borrowings in such Alternative Currency 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, in the case of any Term Loans or Eurocurrency Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the U.S. Borrower or any Domestic Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrowers, then (x) the U.S. Borrower 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 the U.S. Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the U.S. Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the U.S. Borrower shall prepay the U.S. Term Loans (or all outstanding Loans and U.S. L/C Obligations if an Event of Default exists) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the U.S. Borrower states in its notice of such event that the U.S. Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful for use in the Borrower and its Subsidiaries’ ordinary course of the U.S. Borrower's or the applicable Subsidiary's business other than inventoryas then conducted, then so long as no Default or Event of Default then exists, the U.S. Borrower 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 actually invested or reinvested as described in the Borrower’s notice such assets with such 180-day period, and promptly . 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 invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full 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 then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the U.S. Borrower's direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If the Australian Borrower or any Subsidiary thereof shall at any time or 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 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 received by the Australian Borrower or such Subsidiary in respect thereof) and (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 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 an aggregate 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 from an Event of Loss, the Net Cash Proceeds thereof in assets for use in the ordinary course of the Australian Borrower's or 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 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 any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, options and (D) equity securities capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofhereby, the U.S. Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the U.S. Borrower shall prepay the Obligations U.S. Term Loans and, on behalf of Penford Holdings, the Australian Term Loan in the an aggregate amount equal to 100% (xor 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) twenty five percent (25%) of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to Obligations based on the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullprincipal 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 6.11 7.11 (Maintenance of Subsidiaries) or Section 8.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iiiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required 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 delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the fiscal year ending on U.S. Borrower or about December 31, 2013such Subsidiary of Net Cash Proceeds of such issuance, the U.S. Borrower shall prepay the then-outstanding U.S. Term Loans by and, on behalf of Penford Holdings, the Australian Term Loan in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full and then to Obligations based on the Line of Credit Loans (without reduction principal amounts thereof. Each of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal Borrowers acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by breach of Section 7.7 hereof or any other terms of the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(ivv) Within 90 days after 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 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 Line of U.S. Revolving Credit Commitments are reduced pursuant to Section 2.102.3 hereof, prepay the Line of Credit Loans 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 reduce the sum of the aggregate principal amount of Line of Credit Loans U.S. Revolving Loans, U.S. Swing Loans, and U.S. L/C Obligations then outstanding to the amount to which the Line of U.S. Revolving Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Penford Corp)
Mandatory. (i) If the Parent, the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 (or the equivalent thereof in another currency) individually or on a cumulative basis in any fiscal yearyear of the Parent, then (x) the Borrower 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 the Parent, the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Parent, the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds (or to all outstanding Loans and L/C Obligations if an Event of Default exists); provided, provided that in the case of (x) each Disposition and Event of Loss, if the Parent or the Borrower states in its notice of such event that the Parent, the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 90 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar like-kind to the assets which were subject to such Disposition or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryEvent of Loss, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Parent, the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations Term Loans in the amount of such Net Cash Proceeds not so invested reinvested (or reinvested to all outstanding Loans and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following L/C Obligations if an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (iDefault exists). The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full Obligations of the several Lenders based on the principal amounts thereof. If a Default or Event of Default exists, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Parent, the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the account of the Parent, the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Parent, the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Term Loans (or to all outstanding Loans and L/C Obligations if an Event of Default exists) in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to Obligations of the Line of Credit Loans (without any reduction in several Lenders based on the Line of Credit Commitments) until paid in fullprincipal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 hereof or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Parent, the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a), (b), (c), (d), (e) or (g) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal yearthe Parent, beginning with the fiscal year ending on Borrower or about December 31such Subsidiary in respect thereof. Promptly upon receipt by the Parent, 2013the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the then-Term Loans (or to all outstanding Loans by and L/C Obligations if an Event of Default exists) in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction Obligations of the Line of Credit Commitment) until paid in fullseveral Lenders based on the principal amounts thereof. Any voluntary prepayments of principal The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by the amount breach of such voluntary prepayments, the amount required to be paid by the Borrower under Section 8.7 hereof or any other terms of this Section 2.8(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 madeAgreement.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Revolving 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 Line of Credit Revolving Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) 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 Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans until payment in full thereof with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.9(b) shall be applied first to Borrowings of Base Rate Loans until payment in full thereof, then to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire, then to the Fixed Rate Loan. Each prepayment of Loans under this Section 1.9(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Term Loans, the Fixed Rate Loan or Eurodollar Loans, accrued interest thereon to the date of prepayment together with, in the case of any Eurodollar Loans or the Fixed Rate Loan, any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If for any reason the Borrower or any Subsidiary shall Total Outstandings at any time or from time to time make a Disposition or exceed the Aggregate Elected Commitment Amount then in effect, the Borrower shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then immediately (x) the Borrower shall promptly notify the Administrative Agent of prepay Committed Loans in an aggregate principal amount equal to such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) excess and (y) promptly upon receipt by if any excess remains after prepaying all Committed Loans as a result of outstanding L/C Obligations, pay to the Borrower or the Subsidiary Administrative Agent, on behalf of the Net Cash Proceeds of such Disposition or such Event of LossL/C Issuers and the Lenders, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net excess in order to Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of Collateralize such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullL/C Obligations.
(ii) If after Upon any determination of or adjustment to the Closing Date amount of the Borrower or any Subsidiary shall issue any new equity securities Borrowing Base pursuant to Section 2.05 (other than pursuant to Section 2.05(c), 2.05(d) or 2.05(e)), if a Borrowing Base Deficiency exists, the Borrower shall, within ten days after being notified of such Borrowing Base Deficiency, provide an irrevocable written notice (the “Election Notice”) to Lender stating the action which Borrower proposes to take to remedy such Borrowing Base Deficiency, and the Borrower shall thereafter do one or a combination of the following (as elected by the Borrower pursuant to the Election Notice) in an aggregate amount sufficient to eliminate such Borrowing Base Deficiency:
(A) Specified Preferred issued within ten days following the delivery (or required delivery) of such Election Notice, make a prepayment of the Committed Loans (and, if a Borrowing Base Deficiency remains after prepaying all of the Committed Loans as a result of outstanding L/C Obligations, pay to CIC Partners the Administrative Agent, on behalf of the L/C Issuers and its Controlled Investment Affiliatesthe Lenders, an aggregate amount equal to such remaining deficiency in order to Cash Collateralize such outstanding L/C Obligations);
(B) equity securities issued pay in six equal monthly installments of the Outstanding Amount of the Committed Loans (and, if a Borrowing Base Deficiency remains after prepaying all of the Committed Loans as a result of outstanding L/C Obligations, pay to satisfy local licensing requirementsthe Administrative Agent, on behalf of the L/C Issuers and the Lenders, an aggregate amount equal to such remaining deficiency in order to Cash Collateralize such outstanding L/C Obligations) over a term and in an amount satisfactory to the Administrative Agent (but in any event, with the first such monthly installment to be due on the thirtieth day following delivery of the Election Notice and each subsequent installment being equal to 1/6 of the aggregate amount of such Borrowing Base Deficiency due and payable on the dame date in each applicable subsequent calendar month), by immediately dedicating a sufficient amount of monthly cash flow from the Oil and Gas Properties of the Borrower and the other Loan Parties; and/or
(C) equity securities issued within thirty days following the delivery of the Election Notice, grant the Administrative Agent, on behalf of the Secured Parties, a first-priority Lien, pursuant to Collateral in connection with the exercise of employee stock options, form and (D) equity securities issued substance satisfactory to the seller of an Acquired Business Administrative Agent, on additional Oil and Gas Properties not evaluated in connection the most recently delivered Engineering Report to the Administrative Agent and with an Acquisition permitted by aggregate PV9 Pricing attributable thereto sufficient to eliminate such deficiency; provided that, in no event may the terms hereofBorrower elect the option specified in this clause (ii)(C) (in whole or in part) if fewer than ninety-one days remain until the Maturity Date. Notwithstanding anything herein to the contrary, if anyall payments required to be made pursuant to this Section 2.06(b)(ii) must, in any event, be made on or incur any Indebtedness other than that permitted by Section 6.11 hereofprior to the Maturity Date. In the event the Borrower fails to provide an Election Notice to the Administrative Agent within the ten day period referred to above, the Borrower shall promptly notify be deemed to have irrevocably elected the Administrative Agent option set forth in clause (ii)(B). The failure of the estimated Net Cash Proceeds of such issuance or incurrence Borrower to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) comply with any of the Net Cash Proceeds of the incurrence of options elected (including any such Indebtedness. The amount of each such prepayment shall be applied first deemed election) pursuant to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms provisions of this AgreementSection 2.06(b)(ii) and specified in such Election Notice (or relating to such deemed election) shall constitute an immediate Event of Default.
(iii) On or before Upon any adjustment to the date that is thirty (30) days after amount of the date annual financial statements are required to be delivered Borrowing Base pursuant to Section 6.1(b2.05(c), 2.05(d) of each fiscal yearor 2.05(e), beginning with the fiscal year ending on or about December 31if a Borrowing Base Deficiency exists, 2013, then the Borrower shall shall, in each case, within two Business Days after the consummation or occurrence of the event or events giving rise to such Borrowing Base adjustment, prepay the then-outstanding Committed Loans by in an aggregate principal amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by such deficiency and (y) Cash Flow if any deficiency remains after prepaying all Committed Loans as a result of Borrower and its Subsidiaries for such fiscal year (oroutstanding L/C Obligations, in pay to the case Administrative Agent, on behalf of the fiscal year ending on or about December 31L/C Issuers and the Lenders, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of an aggregate amount equal to such fiscal year) . The amount of each excess in order to Cash Collateralize such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were madeL/C Obligations; provided that, notwithstanding anything herein to the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zerocontrary, and no such voluntary prepayments shall reduce all payments required to be made under pursuant to this Section 2.8(b)(iii2.06(b)(iii) must, in any year following the year immediately subsequent event, be made on or prior to the year such voluntary payments were madeMaturity Date.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 5,000,000 individually or on a cumulative basis in any fiscal yearyear of Holdings, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100100.0% of the amount of all such Net Cash ProceedsProceeds in excess of $5,000,000 for the applicable fiscal year; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossLoss or, in 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 similar like-kind assets or other assets used or useful in the business of the Borrower and its Subsidiaries’ business Subsidiaries (other than inventorycurrent assets), then so long as no Default or Event of Default then exists, the Borrower shall not be required to 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 with within such 180365-day period (or such extension period, and promptly ). Promptly after the end of such 180365-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 applicable fiscal year not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. 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 the Line Cash Collateralize Letters of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullCredit.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) incur or incur assume any Indebtedness other than that permitted by Section 6.11 hereof7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrence assumption 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 incurrence or incurrence assumption the Borrower shall prepay the Obligations in the an amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata 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 the Line Cash Collateralize Letters of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 7.1 or any other terms of this Agreement.
(iii) On or before the date that is thirty Within fifteen (3015) days after the date annual financial statements are required to be have been delivered pursuant to Section 6.1(b) of each fiscal year), beginning with the fiscal year ending on or about December 31, 20132022, the Borrower shall prepay the then-outstanding Loans Obligations by an amount equal to (x1) the applicable ECF Percentage 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the Borrowersum 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, multiplied by during such calendar year (y) and not applied to the Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year prepayment under this clause (or, in the case of the fiscal year ending on or about December 31, 2013, iii) for the period commencing on prior year) or after the first day end of such calendar year and prior to the first month following prepayment date in this clause (iii), and to the Restatement Effective Date through 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 yearyear 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 Line of Credit Revolving Loans until paid in full (without a corresponding permanent reduction of the Line Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeCredit.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of 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 the 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) If the any Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than Dispositions permitted under Section 6.13(r)) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of U.S. $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrowers, then (x) the Borrower Borrowers 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 the such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the such Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 365 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorylike‑kind assets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s Borrowers’ notice with within such 180-day 365‑day period, and promptly . Promptly after the end of such 180-day 365‑day period, the Borrowers shall notify the Administrative Agent whether such Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrowers’ notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first then to the U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (in accordance with the outstanding Term principal amounts thereof) until all outstanding Revolving Loans until are paid in full and then to the Line of Credit U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (without any reduction in accordance with the Line of Credit Commitments) until paid in fulloutstanding principal amounts thereof).
(ii) If after the Closing Restatement Effective Date the any Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirementsany director, (C) equity securities issued in connection with the exercise manager, or employee as part of an employee stock optionsincentive program, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the such Borrower or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption the Borrower Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx U.S. Revolving Loans and Delayed Draw Term Canadian Revolving Loans pro rata on a ratable basis (in accordance with the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in full and then to the Line of Credit U.S. Swing Loans and Canadian Swing Loans on a ratable basis (without any reduction in accordance with the Line of Credit Commitments) until paid in fulloutstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their 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) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower Borrowers shall, on each date the Line of U.S. Revolving Credit Commitments are reduced pursuant to Section 2.102.9, prepay the Line of Credit U.S. Revolving Loans and, if necessary, prefund U.S. Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit U.S. Revolving Loans, U.S. Swing Loans and U.S. L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Revolving Credit Commitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Loans and, if necessary, Canadian Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Canadian Revolving Loans, Canadian Swing Loans and Canadian L/C Obligations then outstanding to the amount to which the Commitments have been so reduced; and
(iv) Unless the Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of Eurodollar Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Canadian CDOR 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. Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount shall be permanently prepaid in the amounts set forth below upon the occurrence of any of the following events:
(i) If In the event of any Debt Issuance by the Borrower or any of its Restricted Subsidiaries on or after the Closing Date, then concurrently with receipt of Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Net Cash Proceeds; provided that to the extent that (a) to the extent any Net Cash Proceeds received in connection with a Debt Issuance permitted by Section 7.03(i) are used to make a voluntarily redemption, repurchase or prepayment of the 2014 Notes or the 2017 Notes or (b) to the extent any Net Cash Proceeds received in connection with a Debt Issuance permitted by Section 7.03(j) are used to make a voluntarily redemption, repurchase or prepayment of the Convertible Notes, in each case, such Net Cash Proceeds shall not be required to prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, pursuant to this clause (i).
(ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries exceed during any calendar year an amount equal to $25,000,000 (the portion of such Net Cash Proceeds that exceeds $25,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower or such Restricted Subsidiary; provided, however, that with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Restricted Subsidiary may reinvest such Extraordinary Receipts in assets used in the businesses of the Borrower or its Restricted Subsidiaries, and in such case any such Extraordinary Receipts that have not been reinvested within one year from the receipt thereof by the Borrower or such Restricted Subsidiary shall at be immediately applied to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans.
(iii) If Net Cash Proceeds received on or after the Closing Date by the Borrower or any time of its Restricted Subsidiaries from one or from time more Dispositions (other than Dispositions to time make the Borrower or to a Restricted Subsidiary permitted by Section 7.05(a)(v) or 7.05(a)(vi)) or Dispositions permitted by Section 7.05(a)(iv) of property other than Revolver Priority Collateral exceed during any calendar year, an aggregate amount equal to $30,000,000 (the portion of such Net Cash Proceeds that exceeds $30,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall prepay an aggregate amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Disposition Net Cash Proceeds immediately upon receipt thereof by the Borrower or shall suffer an a Restricted Subsidiary, provided, however, (x) for so long as no Event of Loss resulting in Default shall have occurred and be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds in an amount exceeding $100,000 assets used in any fiscal year, then (x) the business of the Borrower shall promptly notify the Administrative Agent of or its Subsidiaries, and in such proposed case any Excess Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received that have not been reinvested within one year from the receipt thereof by the Borrower or such Subsidiary shall, upon the expiration of such one-year period, be immediately applied, as otherwise provided in respect thereofthis Section 2.03(b)(iii), to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, or if clause (y) is applicable thereto, as provided in clause (y); and (y) promptly upon receipt Excess Disposition Net Cash Proceeds received from one or more Dispositions permitted by Section 7.05(a)(ix) or 7.05(a)(x) may be either (1) reinvested as provided in clause (x) above or (2)(A) used by the Borrower or the Subsidiary to make an optional prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, at par in an amount equal to the Lenders’ Applicable Percentage (calculated without regard for any Outstanding Amount of any Class of Loans not entitled to share in such application) of such Excess Disposition Net Cash Proceeds or (B) used by the Borrower to make a voluntary redemption of the 2014 Notes or, if the 2014 Notes are no longer outstanding, to make an offer to the Lenders to prepay the Term Facility pursuant to Section 2.03(c) and, to the extent such offer is declined, the Borrower may retain such declined amounts.
(iv) In the event that there shall be Consolidated Excess Cash Flow for any fiscal year (commencing with fiscal year ending December 31, 2011), the Borrower shall, no later than ninety days after the end of such Disposition fiscal year, prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in an aggregate amount equal to 50% of such Consolidated Excess Cash Flow less 100% of voluntary prepayments made during that fiscal year pursuant to Section 2.03(a); provided, however, that (A) in the event that the Consolidated Leverage Ratio is less than 3.00 to 1.00 but greater than or equal to 2.00:1.00 as evidenced by a Compliance Certificate provided pursuant to Section 6.02(b) as of the end of such Event of Lossfiscal year, the Borrower shall prepay the Obligations Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in an aggregate amount equal to 25% of such Consolidated Excess Cash Flow less 100% of the amount of all such Net Cash Proceeds; provided, voluntary prepayments made during that fiscal year pursuant to Section 2.03(a) and (B) in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends Consolidated Leverage Ratio is less than 2.00 to invest or reinvest1.00, as applicable, within 180 days evidenced by a Compliance Certificate provided pursuant to Section 6.02(b) as of the applicable Disposition end of such fiscal year or receipt upon the written consent of Net Cash Proceeds from an Event of Lossthe Required Lenders, no such prepayment shall be required. Notwithstanding anything to the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then existscontrary contained within this subsection (iv), the Borrower shall not be required to make a mandatory prepayment any payment under this Section in respect of such Net Cash Proceeds subsection (iv) to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each that such prepayment shall be applied first would cause Liquidity to fall below the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullMinimum Liquidity Threshold.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If the any Borrower or any Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower Representative 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 the such Borrower or such Subsidiary Guarantor in respect thereof) and (y) and, promptly upon receipt by the such Borrower or the Subsidiary such Guarantor of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of this subsection shall not require any such event that the Borrower or the applicable Subsidiary intends prepayment with respect to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event received on account of Loss, Dispositions or Events of Loss during any fiscal year of the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful Parent not exceeding $500,000 (the “Threshold Amount”) in the Borrower and its Subsidiaries’ business other than inventory, then aggregate so long as no Default or Event of Default then exists, and (y) in the case of any Disposition or Event of Loss not covered by clause (x) above, so long as no Default or Event of Default then exists, if the Borrower Representative states in its notice of such event that the relevant Borrower or the relevant Guarantor intends to reinvest, within 180 days of the applicable Disposition or Event of Loss, the Net Cash Proceeds thereof in Property similar to the Property which were subject to such Disposition or other assets useful in such Borrower’s or such Guarantor’s business, then the Borrowers shall not be required to make a mandatory prepayment under this Section subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested reinvested in such similar Property or reinvested as described such other Property useful in the such Borrower’s notice with or such Guarantor’s business within such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower Representative shall notify the Administrative Agent whether such Borrower or such Guarantor has reinvested such Net Cash Proceeds in such similar or other useful Property, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) reinvested, provided, that if at the end of such 180-day period such Net Cash Proceeds constituting proceeds are contractually committed to be reinvested, the Borrowers shall prepay any such Net Cash Proceeds in excess of business interruption insurance maintained the Borrower Threshold Amount upon the earlier of (i) termination of such commitment and (ii) if such amount is not so expended, the first day following the date such amount was contractually committed to be expended, but in any event not later than the date 360 days following the applicable Disposition or applicable Subsidiary following an Event of Loss. The amount of each such prepayment shall be applied, first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Revolving Credit (but, for the avoidance of doubt, without any permanent reduction in the Revolving Credit Commitment). 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 (or its agent) and held by it in the Collateral Account. So long as no mandatory prepayment 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 Representative’s direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property or in any permitted reinvestment.
(ii) If after the Closing Date any Borrower or any Guarantor shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower Representative 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 Guarantor in respect thereof. Promptly upon receipt by such Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds shall be required under this clause (i)Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessRevolving Credit. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) Within 100 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning year of the Parent (commencing with the fiscal year ending on or about December 31, 20132014), the Borrower Borrowers shall prepay the then-outstanding Loans Obligations by an amount equal to (x) the applicable ECF Excess Cash Flow Prepayment Percentage of Excess Cash Flow of the Parent, the Borrowers and their respective Subsidiaries for the most recently completed fiscal year of the Borrower, multiplied by Parent minus (y) Cash Flow (i) the aggregate principal amount of Borrower and its Subsidiaries for such fiscal year (or, in Term Loans voluntarily prepaid by the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of Borrowers pursuant to Section 1.9(a) during such fiscal year, and (ii) the aggregate principal amount of Revolving Loans voluntarily prepaid by the Borrowers (to the extent accompanied by an equivalent permanent reduction of the Revolving Credit Commitment pursuant to Section 1.13(a) hereof) during such fiscal year, in each case, excluding the aggregate principal amount of any such voluntary prepayments made with the proceeds of incurrences of Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term Loans in the manner set forth in Section 1.9(c) hereof until paid in full and then to the Line Revolving Credit (but, for the avoidance of Credit Loans (doubt, without any permanent reduction of in the Line of Revolving Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower Borrowers shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof or otherwise, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) If at any time the sum of the (i) aggregate Original Dollar Amount of Revolving Loans, (ii) the aggregate Original Dollar Amount of Swing Loans and (iii) the aggregate U.S. Dollar Equivalent of all L/C Obligations then outstanding shall be in excess of the Revolving Credit Commitments in effect at such time, the Borrowers shall promptly (but in any event within one (1) Business Day) upon notice or demand pay over the amount of the excess to the Administrative Agent for the account of the Revolving Credit Lenders as a mandatory prepayment of the Obligations, with each such prepayment first to be applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(vi) Unless the Borrower Representative otherwise directs, prepayments made under this Section 1.9(b) in U.S. Dollars shall be applied first to Borrowings of Base Rate Loans until payment in full thereof with any balance applied to Borrowings of Eurocurrency Loans denominated in U.S. Dollars in the order in which their Interest Periods expire and prepayments made in Alternative Currencies under this Section 1.9(b) shall be applied to Borrowings in such Alternative Currency 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, in the case of any Term Loans or Eurocurrency Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower Upon receipt by any Loan Party or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in its --------- Subsidiaries of Net Cash Proceeds in an amount exceeding $100,000 in from any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of LossAsset Disposition, the Borrower shall prepay the Obligations then outstanding Advances in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five one- hundred percent (25100%) of such Net Cash Proceeds payable concurrently with consummation of such Asset Disposition; provided that no such prepayment -------- need be made (1) unless the Net Proceeds from any single Asset Disposition or series of related Asset Dispositions exceed $100,000 (in which case a prepayment shall be made in the amount of the entire Asset Disposition) or until the cumulative Net Proceeds from all Asset Dispositions by the Borrower in any particular fiscal year exceed $100,000 (in which case a prepayment shall be made in the amount of the Net Proceeds from the issuance specific Asset Disposition (or portion thereof) causing the limit to be exceeded), except that the terms of this Section shall not be applicable with respect to Asset Dispositions by the Borrower or any Subsidiary if the Net Proceeds therefrom are reinvested in fixed assets (for use in its business or, with respect to the Borrower, the business of the Subsidiaries) within 180 days of such new equity securities and Asset Disposition, provided that any -------- such Net Proceeds not so reinvested shall be used to prepay the Advances on the 181st day; provided, however, that with respect to the Net Proceeds -------- ------- from the Orpington Sale/Leaseback, the Borrower shall have twenty-four (y24) months from the closing of the Orpington Sale/Leaseback to reinvest such Net Proceeds in fixed assets (for use in its business), provided, that, if -------- such Net Proceeds from the Orpington Sale/Leaseback are not so reinvested within such twenty-four (24) month period, any such Net Proceeds not so reinvested shall be used to prepay the Advances on the Business Day immediately succeeding the second anniversary of the closing of the Orpington Sale/Leaseback.
(ii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from any Equity Issuance, the Borrower shall prepay the then outstanding Advances in an amount equal to one hundred percent (100%) of the such Net Cash Proceeds payable concurrently with consummation of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreementissuance.
(iii) On Upon receipt by the Borrower or before any of its Subsidiaries of Net Cash Proceeds from the date that is thirty sale or issuance by the Borrower or any of its Subsidiaries of any Debt (30) days after the date annual financial statements are required other than Debt permitted to be delivered pursuant to incurred under Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 20137.02), the Borrower shall prepay the then-then outstanding Loans by Advances in an amount equal to one hundred percent (x100%) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount Net Cash Proceeds payable concurrently with consummation of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madesale or issuance.
(iv) Each prepayment made pursuant to clause (i), (ii), or (iii) shall be applied to prepay the Facilities in the following manner: first, ----- to prepay Term A Advances then outstanding until the Term A Facility is repaid in full (such prepayments to be applied to the installments of the Term A Advances in the inverse order of the maturity thereof); second, to ------ prepay Revolving Advances then outstanding until such Revolving Advances are paid in full; third to prepay Alternative Currency Revolving Advances ----- then outstanding until such Alternative Currency Revolving Advances are paid in full; fourth to prepay Letter of Credit Advances then outstanding ------ until such Advances are paid in full and fifth, to prepay Alternative ----- Currency Letter of Credit Advances then outstanding until such Advances are paid in full.
(v) The Borrower shall, on within fifteen (15) days following the end of each date month in each Fiscal Year, pay to the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund Administrative Agent for deposit in the L/C Obligations by the amount, if any, necessary Cash Collateral Account an amount sufficient to reduce the sum of cause the aggregate principal amount on deposit in such Account to equal the (i) amount by which the aggregate Available Amount of Line all Letters of Credit Loans and L/C Obligations then outstanding to exceeds the Letter of Credit Facility on such Business Day plus ---- (ii) the Dollar Equivalent amount to by which the Line aggregate Available Amount of all Alternative Currency Letters of Credit Commitments have been so reducedthen outstanding exceeds the Alternative Currency Letter of Credit Facility on such Business Day.
(vi) The foregoing notwithstanding, the provisions of this subsection 2.06(b) shall not be construed to permit any Equity Issuance, Debt issuance or Asset Disposition otherwise prohibited under the terms of this Agreement."
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at of its Subsidiaries Disposes of any time or from time to time make a property (other than any Disposition or shall suffer an Event of Loss resulting any property permitted by Section 7.05) which results in the realization by such Person of Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 in the aggregate in any fiscal yearyear of the Borrower, then (x) the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of Loans equal to 100% of such proposed Disposition Net Cash Proceeds in excess of $250,000 in the aggregate in any fiscal year of the Borrower immediately upon receipt thereof by such Person; provided however, that if a Default or Event of Loss (including Default shall have occurred and be continuing, the Borrower shall prepay an aggregate principal amount of the estimated Loans equal to 100% of any such Net Cash Proceeds realized by such Person with respect to any Disposition during the continuance thereof immediately upon receipt of such Net Cash Proceeds by such Person (any prepayments pursuant to this Section 2.05(b)(i) to be applied as set forth in clauses (vi) and (ix) below);
(ii) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries in excess of $250,000 in the aggregate in any fiscal year of the Borrower, and not otherwise included in this Section 2.05(b), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds in excess of $250,000 in the aggregate in any fiscal year of the Borrower received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower Subsidiary; provided however, that if a Default or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of LossDefault shall have occurred and be continuing, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of any such Net Cash Proceeds received by such Person with respect to any such Extraordinary Receipts during the continuance thereof immediately upon receipt of such Net Cash Proceeds by such Person (any such prepayments to be applied as set forth in clauses (iii) and (v) below); and provided, further, 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 Loans as set forth in this Section 2.05(b)(ii).
(iii) 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 in inverse order of maturity and, second, to the Revolving Credit Facility in the manner set forth in clause (v) of this Section 2.05(b).
(iv) 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 100% such excess.
(v) Prepayments of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends Revolving Credit Facility made pursuant to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period2.05(b), and promptly after the end of such 180-day periodfirst, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first ratably to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by Borrowings and the amountSwing Line Loans, and second, shall be applied ratably to the outstanding Revolving Credit Loans, the amount remaining, if any, necessary to reduce after the sum prepayment in full of the aggregate principal amount of Line of Credit Loans and all L/C Obligations then Borrowings, Swing Line Loans and Revolving Credit Loans outstanding to at such time may be retained by the amount to which Borrower for use in the Line ordinary course of Credit Commitments have been so reducedits business.
Appears in 1 contract
Samples: Credit Agreement (Athenahealth Inc)
Mandatory. (i) If Within three (3) Business Days of the Borrower or Company’s receipt of any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds on or after the Closing Date, the Company shall prepay the Loans in an aggregate amount exceeding $100,000 in equal to:
(A) 100% of any fiscal yearAsset Sale Proceeds; provided that notwithstanding the foregoing, then it is understood and agreed that to the extent that (x) the Borrower 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 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 Borrower or such Subsidiary Company and its Subsidiaries due to a divestiture required by a Governmental Authority in respect thereofconnection with the consummation of the Acquisition) and (y) promptly upon receipt any such Asset Sale Proceeds are received and held by the Borrower a foreign Subsidiary and repatriation thereof is prohibited or limited by applicable foreign law or other valid legal restriction, or the Subsidiary 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 such Disposition its Subsidiaries from any Specified Debt Incurrence, other than any Qualified Bank Financing or such Event of Loss, any Specified Debt Incurrence that reduced the Borrower shall prepay the Obligations in an aggregate amount equal Commitments hereunder pursuant to Section 2.06(d); and
(C) 100% of the amount of all such Net Cash Proceeds; providedProceeds 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 amounts prepaid and, in the case of (x) each Disposition and Event any prepayment of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business a Eurocurrency Rate Borrowing on a date other than inventorythe last day of an Interest Period or at its maturity, then so long as no Default or Event of Default then exists, any additional amounts which the Borrower Company shall not be required obligated to make a mandatory prepayment under this Section reimburse to the Lenders in respect of such Net Cash Proceeds thereof pursuant to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullSection 2.14.
(iiiii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower The Company shall promptly (and no later than the date of receipt thereof) notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower Company or such Subsidiary 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 such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such applicable Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this AgreementProceeds.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: 364 Day Bridge Credit Agreement (Sherwin Williams Co)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the outstanding Loans and L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar like-kind to the assets which were subject to such Disposition or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryEvent of Loss, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice such similar assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the outstanding Loans and L/C Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full and then to Obligations based on the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullprincipal amounts thereof.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, common stock issued to fund the prepayment, redemption or purchase of Senior Notes, and (D) equity securities capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofhereby, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the outstanding Loans and L/C Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to Obligations based on the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullprincipal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(e) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by and L/C Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full Obligations based on the principal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and then to the Line of Credit Loans (without reduction remedies of the Line Lenders for any breach of Credit Commitment) until paid in full. Any voluntary prepayments of principal Section 8.7 hereof or any other terms of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(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 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Samples: Credit Agreement (Rent Way Inc)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 ninety (90) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid obligations of the Borrower under the Senior Credit Agreement in full accordance with the Senior Credit Agreement and then to the Line outstanding Loans hereunder. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit CommitmentsDefault exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from one or more separate collateral accounts (each such account, and the credit balances, properties, and any investments from time to time held therein, and any substitutions for such account, any certificate of deposit or other instrument evidencing any of the foregoing and all proceeds of and earnings on any of the foregoing being collectively called the “Collateral Account”) until paid in fullto 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 Subsidiary shall issue any new equity securities (Indebtedness for Borrowed Money, other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that for Borrowed Money permitted by Section 6.11 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid obligations of the Borrower under the Senior Credit Agreement in full accordance with the Senior Credit Agreement and then to the Line of Credit outstanding Loans (without any reduction in the Line of Credit Commitments) until paid in fullhereunder. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing 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 exercise of employee stock options or issue any Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Net Cash Proceeds. The Borrower under this Section 2.8(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) acknowledges that its performance hereunder shall not in limit the rights and remedies of the Lenders for any event be reduced to less than zerobreach of Section 8.11 (Maintenance of Subsidiaries), Section 8.7 (Borrowings and no such voluntary prepayments shall reduce payments required to be made under this Guaranties), or Section 2.8(b)(iii9.1(i) in (Change of Control) hereof or any year following other terms of the year immediately subsequent to the year such voluntary payments were madeLoan Documents.
(iv) The Borrower shall, on each date the Line Each prepayment of Credit Commitments are reduced pursuant to Loans under this Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations 1.4(b) shall be made by the amount, if any, necessary to reduce the sum payment of the aggregate principal amount of Line of Credit Loans to be prepaid and L/C Obligations then outstanding accrued interest thereon to the amount to which the Line date of Credit Commitments have been so reducedprepayment.
Appears in 1 contract
Mandatory. (i) The Borrower shall, on each date the Revolving Credit Commitment is reduced pursuant to Section 2.11, prepay the Revolving 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 Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitment has been so reduced.
(ii) [Reserved].
(iii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower shall promptly notify the Administrative Agent Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $200,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and Event of Lossabove, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 90 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Bank whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting reinvested. If the Bank so requests, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Bank (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default exists, the Bank 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 Credit Commitments) until paid in fullreplacing, rebuilding or restoring such Property.
(iiiv) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent Bank of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullRevolving Facility. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders Bank for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7(a)-(j), the Borrower shall promptly notify the Bank of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full Revolving Facility. The Borrower acknowledges that its performance hereunder shall not limit the rights and then to the Line of Credit Loans (without reduction remedies of the Line Bank for any breach of Credit Commitment) until paid in full. Any voluntary prepayments of principal Section 8.7 or any other terms of the Term Loans made during Loan Documents.
(vi) If after the Closing Date the Borrower or any year Subsidiary shall reduceissue any Subordinated Debt, the Borrower shall promptly notify the Bank 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 an aggregate amount equal to 100% of the amount of such voluntary prepayments, Net Cash Proceeds. The amount of each such prepayment shall be applied to the amount required to be paid by Revolving Facility. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Bank for any breach of Section 8.7 or any other terms of the Loan Documents.
(vii) [Reserved].
(viii) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b)(iii2.8(b) during 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 year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b)(iii2.8(b) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required made by the payment of the principal amount to be made under this Section 2.8(b)(iii) prepaid and, in the case of any year following the year immediately subsequent Eurodollar Loans, accrued interest thereon to the year such voluntary payments were made.
(iv) The Borrower shall, on each date of prepayment together with any amounts due the Line Bank under Section 4.5. Each prefunding of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedshall be made in accordance with Section 9.4.
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Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower this subsection shall not be required require any such prepayment with respect to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent received on account of an Event of Loss so long as such Net Cash Proceeds are actually invested applied to replace or reinvested as described restore the relevant Property in accordance with the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount relevant Collateral Documents within six months following receipt of such Net Cash Proceeds not so invested or reinvested Proceeds, and (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds constituting proceeds received on account of business interruption insurance maintained Dispositions or Events of Loss during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Default or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)Default then exists. The amount of each such prepayment shall be applied first to the outstanding Term Revolving Loans until paid in full and then then, to the Line extent that an Event of Credit Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans (without any reduction in of the Line of Credit Commitments) until paid in fullseveral Lenders based on the principal amounts thereof.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirementsofficers, (C) equity securities issued directors or employees of the Borrower as compensation for bona fide services provided or to be provided to the Borrower by such persons and approved by the Borrower’s Board of Directors or the Compensation Committee of the Borrower’s Board of Directors, as the case may be, or in connection with the exercise of employee stock options, options and (D) equity securities capital stock of the Borrower issued to the seller of an Acquired Business in connection with an a Permitted Acquisition permitted by the terms hereof, if any) or incur to any Indebtedness other than that permitted by Section 6.11 hereofPerson as a dividend or distribution, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations outstanding Revolving Loans until paid in the full, in an aggregate amount equal to (x) twenty five percent (25%) 50% of the amount of such Net Cash Proceeds from and then, to the issuance extent that an Event of such new equity securities and (y) one hundred percent (100%) Default then exists, applied to cash collateralize the Letters of the Net Cash Proceeds of the incurrence of any such IndebtednessCredit. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to of the Line of Credit Loans (without any reduction in several Lenders based on the Line of Credit Commitments) until paid in fullprincipal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(h) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Revolving Loans by until paid in full in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in fullseveral Lenders based on the principal amounts thereof. Any voluntary prepayments of principal The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by breach of Section 8.7 hereof or any other terms of the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Revolving 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(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 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
(vi) For the avoidance of doubt, (A) any prepayment of Loans or any cash collateralization of Letters of Credit under this Section 1.8(b) shall not reduce the Revolving Credit Commitments and (B) the Borrower and its Subsidiaries shall not be required to apply Net Cash Proceeds to make any prepayments required by Sections 1.8(b)(i)-(iii) if no Loans are outstanding and no Event of Default exists.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 (or the U.S. Dollar Equivalent thereof, if applicable) individually or on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay first the Term Loans in the manner specified in Section 1.9(e) hereof until the Term Loans are paid in full and then the Revolving Loans, Swing Loans and L/C Obligations (or all outstanding Loans and L/C Obligations if an Event of Default exists) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful for use in the Borrower and its Subsidiaries’ ordinary course of the Borrower’s or the applicable Subsidiary’s business other than inventoryas then conducted, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice such assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the 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 Borrower shall promptly prepay the Term Loans (or all outstanding Loans and L/C Obligations if an Event of Default exists) in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full and then to Obligations based on the Line of Credit Loans principal amounts (without any reduction in the Line U.S. Dollar Equivalent) thereof. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Commitments) until paid such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in fullthe 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 Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, options and (D) equity securities capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofhereby, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay first the Obligations Term Loans in the manner specified in Section 1.9(e) hereof until the Term Loans are paid in full and then the Revolving Loans, Swing Loans and L/C Obligations (or all outstanding Loans and L/C Obligations if an Event of Default exists), in an aggregate amount equal to 100% (xor 50% if the Borrower’s Total Senior Funded Debt/EBITDA Ratio was less than 2.0 to 1.0 for the two consecutive fiscal quarters immediately preceding the date of such required payment) twenty five percent (25%) of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing Obligations based on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid principal amounts (in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.U.S. Dollar Equivalent)
Appears in 1 contract
Samples: Credit Agreement (Penford Corp)
Mandatory. (i) If the Borrower any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 individually or on a cumulative basis in any fiscal yearyear of Credit Parties, then (x) the Borrower Representative 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 the Borrower such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within two (2) Business Days) upon receipt by the Borrower any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower Representative states in its notice of such event that the Borrower applicable Credit Party or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the BorrowerBorrower Representative’s notice with within such one hundred eighty (180-) day period, and promptly . 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 and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitmentsorder determined by Agent) until paid in fullthe Revolving Loans, Swing Loans and the Reimbursement Obligations.
(ii) If after the Restatement Closing Date the Borrower Date, any Credit Party or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) incur or incur assume any Indebtedness (other than that permitted by Section 6.11 hereof), the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrence assumption to be received by or for the Borrower account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within two (2) Business Days) upon receipt by the Borrower such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance incurrence or incurrence the Borrower assumption Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to (in the outstanding Term A order determined by Agent) the Revolving Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.Swing
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Addus HomeCare Corp)
Mandatory. (i) If the Borrower or any Subsidiary of its Subsidiaries 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), (x) or (l)) or any Casualty Event occurs, which results in the realization by such Person of Net Cash Proceeds, the Borrower shall at prepay an aggregate principal amount of Term A Loans equal to 100% of such Net Cash Proceeds (or, if the Borrower or any time 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 from time to time make a 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 Term A Loans and such Indebtedness then outstanding) promptly, but in any 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 clauses (iv) and (v) below); provided, however, that with respect to any such Net Cash Proceeds actually received by or paid to or for the account of the Borrower or any of its Subsidiaries, at the election of the Borrower, and so long as no Default shall suffer an Event have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of Loss resulting in such Net Cash Proceeds in an amount exceeding $100,000 assets that are used or useful in the business of the Borrower and its Subsidiaries so long as within 12 months after the actual receipt of such Net Cash Proceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any fiscal yearportion 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, then 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) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount of the estimated 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 after the end of the applicable reinvestment period, applied to the prepayment of the Term A Loans as set forth in this Section 2.05(b)(i).
(ii) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (x) not expressly permitted to be incurred or issued pursuant to Section 7.02 or (y) that constitutes Refinancing Commitments, Refinancing Loans or Refinancing Equivalent Debt, the Borrower [Valvoline - Credit Agreement] shall prepay an aggregate principal amount of Term A Loans equal to 100% of all Net Cash Proceeds received therefrom promptly, but in any event within five Business Days, after actual receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in respect thereofclause (iii) below and subject to clause (yiv) promptly upon receipt below).
(iii) 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 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 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 the Subsidiary all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.05(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 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 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 Event of LossNet Cash Proceeds, the Net Cash Proceeds so affected may be retained by the applicable 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 immediately prepay Revolving Credit Loans, L/C Borrowings and Swing Line Loans and/or Cash Collateralize such L/C Obligations (other than the Obligations L/C Borrowings) in an aggregate amount equal to 100% such excess.
(vii) Prepayments of the amount Revolving Credit Facility made pursuant to clause (vi) of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period2.05(b), and promptly after the end of such 180-day periodfirst, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first ratably to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by Borrowings and Swing Line Loans, second, shall be applied ratably to the amountoutstanding Revolving Credit Loans, if anyand, necessary third, shall be used to reduce Cash Collateralize the sum of the aggregate principal amount of Line of Credit Loans and remaining L/C Obligations then outstanding to Obligations. Upon the amount to which the Line drawing of any Letter of Credit Commitments have that has been so reducedCash 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) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Swingline Loans, Revolving 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 Swingline Loans, Revolving Loans, and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than a Disposition permitted pursuant to Section 8.10 hereof) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $10,000,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and Event of Lossabove, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 180-day 180‑day period, and promptly . Promptly after the end of such 180-day 180‑day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full Revolving Facility, but without a reduction of the Revolving Credit Commitments. 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 (or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no 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 Credit Commitments) until paid in fullreplacing, rebuilding or restoring such Property.
(iiiii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A LoansRevolving Facility, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to but without a reduction of the Line of Credit Loans (without any reduction in the Line of Revolving Credit Commitments) 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 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) 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 Line of Credit Loans (Revolving Facility, but without a reduction of the Line Revolving Credit Commitments. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Credit Commitmentthe Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(v) until paid in full. Any voluntary Unless the Borrower otherwise directs, prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii2.8(b) during 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 year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b)(iii2.8(b) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required made by the payment of the principal amount to be made under this Section 2.8(b)(iii) prepaid and, in the case of any year following the year immediately subsequent Eurodollar Loans or Swingline Loans, accrued interest thereon to the year such voluntary payments were made.
(iv) The Borrower shall, on each date of prepayment together with any amounts due the Line Lenders under Section 4.5. Each prefunding of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedshall be made in accordance with Section 9.4.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearLoss, then (x) the Borrower 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 the Borrower or such any Subsidiary in respect thereof) and (y) promptly upon and, within five Business Days after the receipt by the Borrower or the Subsidiary of the such Net Cash Proceeds of such Disposition or such Event of LossProceeds, the Borrower shall prepay the Obligations relevant Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, 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 (x) each any Disposition and or Event of LossLoss not covered by clause (y) above, so long as no Event of Default has occurred and is continuing, if the Borrower states in its notice of (A) actually reinvests such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicableNet Cash Proceeds, within 180 days 12 months of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Lossthereof, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make or a mandatory prepayment under this Section in respect of such Net Cash Proceeds Subsidiary, to the extent such Net Cash Proceeds are actually invested reinvested in such assets or reinvested as described (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 Borrower’s notice with business of the Borrower or a Subsidiary, to the extent such 180-day period, and promptly Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 18012-day 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 Obligations relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness for Borrowed Money, other than that Indebtedness for Borrowed Money permitted by Section 6.11 hereof8.7 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 to be received by the Borrower or such Subsidiary in respect incurrence. Within five Business Days after receipt thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) , 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first by the Borrower to prepay the outstanding Term A Loans, CapEx Loans and Delayed Draw relevant Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) Within 130 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning Fiscal Year of the Borrower (commencing with the fiscal year ending on or about December 31, 2013, Fiscal Year 2015) the Borrower shall prepay the then-outstanding relevant Term Loans in accordance with this Section 1.9(b) until paid in full by an amount equal to (x) the applicable ECF Prepayment Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) 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 fiscal year prepayment (orto 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 the fiscal year ending on or about December 31each of clauses (a) and (b), 2013such amounts shall in no event be deducted from more than one Excess Cash Flow calculation; provided, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment that no prepayments shall be applied first required pursuant to this Section 1.9(b)(iii) with respect to any Fiscal Year unless, and to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduceextent, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeprepayment exceeds $5,000,000.
(iv) The Borrower shall, on each date the Line of any Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving Loans, Swing Loans, and, if necessary, prefund 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 Line Revolving Loans, Swing Loans, and U.S. Dollar Equivalent of Credit Loans and all L/C Obligations then outstanding with respect to such Class to the amount to which the Line of 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 U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the Revolving Credit Commitments of such Class in effect at such time, the Borrower shall immediately and without notice or demand pay over the 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 applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the 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) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 ninety (90) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(v) below, first to the outstanding Term Loans (to be applied on a ratable basis between the Term A Loans and Acquisition Loans based on the outstanding principal amount thereof) until paid in full and then to the Line Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities (Indebtedness for Borrowed Money, other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that for Borrowed Money permitted by Section 6.11 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(v) below, first to the outstanding Term Loans (to be applied on a ratable basis between the Term A Loans, CapEx Loans and Delayed Draw Term Acquisition Loans pro rata based on the outstanding principal amount thereof) until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullRevolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before Within two (2) days after receipt of the date that is thirty Borrower’s year-end audited financial statements, and in any event within ninety (3090) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning year of the Borrower (commencing with the fiscal year ending on or about December 31, 20132008), the Borrower shall prepay the then-outstanding Loans Obligations by an amount equal to (x) the applicable ECF Prepayment Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower; provided, multiplied by (y) that for the fiscal year ending December 31, 2008, Excess Cash Flow of the Borrower and its Subsidiaries shall be calculated for such fiscal year (orthe period from July 1, in the case of the fiscal year ending on or about 2008 through December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) 2008. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(v) below, first to the outstanding Term Loans (to be applied on a ratable basis between the Term A Loans and Acquisition Loans based on the outstanding principal amount thereof) until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeRevolving Credit.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) Notwithstanding anything to the contrary contained in this Section 1.9(b) or elsewhere in this Agreement, any Lender with an outstanding Acquisition Loan shall have the option to waive any mandatory prepayment of such Acquisition Loan pursuant to clauses (i)-(iv), both inclusive, of this Section 1.9(b) (each such prepayment a “Waiveable Mandatory Acquisition Loan Prepayment”) upon the terms and provisions set forth in this Section 1.9(b)(v). In the event any such Lender desires to waive such Lender’s right to receive any such Waiveable Mandatory Acquisition Loan Prepayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the date on which such prepayment is to occur, which notice shall also include the amount such Lender desires to receive in respect of such prepayment. If any such Lender does not provide such notice, it will be deemed to have accepted 100% of such Waiveable Mandatory Acquisition Loan Payment. In the event that any such Lender waives all or any part of such right to receive any such Waiveable Mandatory Acquisition Loan Prepayment, the Administrative Agent shall apply 100% of the amount so waived by such Lender to the Term A Loans then outstanding in accordance with the relevant clause of this Section 1.9(b), provided that no such waiver request shall be honored following the prepayment in full of the Term A Loans.
(vi) Unless the Borrower otherwise directs, prepayments of Loans (either prepayment of Term Loans or Revolving Loans, as applicable) 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, in the case of any Term Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary of its Wholly-owned Subsidiaries shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of provided that this subsection shall not require any such event that the Borrower or the applicable Subsidiary intends prepayment with respect to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event received on account of Loss, Dispositions during any fiscal year of the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful Borrower not exceeding $5,000,000 in the Borrower and its Subsidiaries’ business other than inventory, then aggregate so long as no Default or Event of Default then exists, the . The Borrower shall not be required to also 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 prepayments as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall may be required under this clause (i)Section 4.8 hereof. The amount of each such prepayment shall be applied first to the outstanding Term Swing Loans until paid in full and then to the Line Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 shall incur any additional Subordinated Debt or the Borrower or any Wholly-owned Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee or director stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or issuance or incurrence to be received by or for the account of the Borrower or such Wholly-owned Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Wholly-owned Subsidiary of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Obligations in apply 100% of the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the prepayment of the outstanding Term A Swing Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full full, second to the prepayment of the Revolving Loans, until paid in full, and then to the Line prefunding of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullall L/C Obligations. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(j) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(iv) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans and Swing Loans until payment in full thereof with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(v) Prepayments of Loans under this Section 1.8(b) or Section 4.8 hereof shall be applied first to Swing Loans, until payment in full thereof, second to all other Borrowings of Base Rate Loans until payment in full thereof, and third to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the any Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition (other than Dispositions permitted under Section 6.13(r)) or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of U.S. $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrowers, then (x) the Borrower Borrowers 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 the such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the such Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states Borrowers state in its notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 365 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s Borrowers’ notice with within such 180365-day period, and promptly . Promptly after the end of such 180365-day period, the Borrowers shall notify the Administrative Agent whether such Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrowers’ notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of U.S. $1,000,000 individually or on a cumulative basis in any fiscal year of the Borrowers not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first then to the U.S. Revolving Loans and the Canadian Revolving Loans on a ratable basis (in accordance with the outstanding Term principal amounts thereof) until all outstanding Revolving Loans until are paid in full and then to the Line of Credit U.S. Swing Loans and the Canadian Swing Loans on a ratable basis (without any reduction in accordance with the Line of Credit Commitments) until paid in fulloutstanding principal amounts thereof).
(ii) If after the Closing Restatement Effective Date the any Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirementsany director, (C) equity securities issued in connection with the exercise manager, or employee as part of an employee stock optionsincentive program, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any, and, so long as no Event of Default exists at the time of any such issue, any Designated Canadian Equity Issuances, if any) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof6.11, the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the such Borrower or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption the Borrower Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx U.S. Revolving Loans and Delayed Draw Term Canadian Revolving Loans pro rata on a ratable basis (in accordance with the outstanding principal amounts thereof) until all outstanding Revolving Loans are paid in full and then to the Line of Credit U.S. Swing Loans and Canadian Swing Loans on a ratable basis (without any reduction in accordance with the Line of Credit Commitments) until paid in fulloutstanding principal amounts thereof). The Borrower acknowledges Borrowers acknowledge that its their 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) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower Borrowers shall, on each date the Line of U.S. Revolving Credit Commitments are reduced pursuant to Section 2.102.9, prepay the Line of Credit U.S. Revolving Loans and, if necessary, prefund U.S. Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding U.S. L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit U.S. Revolving Loans, U.S. Swing Loans and U.S. L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced; and the Borrowers shall, on each date the Canadian Revolving Credit Commitments are reduced pursuant to Section 2.9, prepay the Canadian Revolving Loans and, if necessary, Canadian Swing Loans and, if necessary, in accordance with Section 4.5, Cash Collateralize 103% of the then-outstanding Canadian L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Canadian Revolving Loans, Canadian Swing Loans and Canadian L/C Obligations then outstanding to the amount to which the Commitments have been so reduced; and
(iv) Unless the Borrowers otherwise direct, prepayments of Loans under this Section 2.7(b) shall be applied first to Borrowings of Base Rate Loans and Canadian Prime Rate Loans, as the case may be, until payment in full thereof with any balance applied to Borrowings of EurodollarTranche Rate Loans and Canadian CDOR Loans, as the case may be, in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.7(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any EurodollarTranche Rate Loans or Canadian CDOR 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) If the Subject to clause (vii) below, if either Borrower or any Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearFiscal Year, then (x) the Borrower Borrowers shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the such Borrower or the such Subsidiary of the Net Cash Proceeds of such Asset Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided, provided that in the case of (x) each Asset Disposition and Event of Loss, if the Borrower states Borrowers state in its such notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorylike‑kind assets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s Borrowers’ notice with within such 180-day twelve (12) month period, and promptly . Promptly after the end of such 180-day twelve (12) month period, the Borrowers shall notify the Administrative Agent whether such Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrowers’ notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $1,000,000 not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrowers’ direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If Subject to clause (vii) below, if after the Closing Date the either Borrower or any Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof7.1 (other than Indebtedness permitted by Section 7.1(m)), the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the such Borrower or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption the Borrower Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Administrative Agent or the Lenders for any breach of Section 6.11 7.1 or any other terms of this Agreement.
(iii) On Subject to clause (vii) below, on or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) April 30th of each fiscal year, beginning with the fiscal year ending on or about December 31April 30, 20132018, the Borrower Borrowers shall prepay the then-outstanding then‑outstanding Loans by an amount equal to (x) 50% of Excess Cash Flow of the applicable ECF Percentage Borrowers on a Consolidated basis for the most recently completed fiscal year of the BorrowerFiscal Year; provided that, multiplied by (y) no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of the two consecutive fiscal quarters of the Borrowers immediately preceding the date such fiscal yearExcess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrowers have delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or Event of Default has occurred and is continuing on April 30th of such year when the Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoans.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. (i) If the Borrower or any Restricted Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearLoss, then (x) the Borrower 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 the Borrower or such any Restricted Subsidiary in respect thereof) and (y) promptly upon and, within five Business Days after the receipt by the Borrower or the Subsidiary of the such Net Cash Proceeds of such Disposition or such Event of LossProceeds, the Borrower shall prepay the Obligations relevant Term Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, 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 (x) each any Disposition and or Event of LossLoss not covered by clause (y) above, so long as no Event of Default has occurred and is continuing, if the Borrower states (A) actually reinvests such Net Cash Proceeds, within 12 months of the receipt thereof, in its notice of such event assets that perform the same or similar function for the Borrower or the applicable Subsidiary intends to invest or reinvesta Restricted Subsidiary, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested reinvested in such assets or reinvested as described (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 Borrower’s notice with business of the Borrower or a Restricted Subsidiary, to the extent such 180-day period, and promptly Net Cash Proceeds are actually reinvested in such assets within 18 months following the receipt thereof. Promptly after the end of such 18012-day 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 Obligations relevant Term Loans in the amount of such Net Cash Proceeds in excess of the applicable $2,500,000 basket described above not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) accordance with this Section 1.9 until paid in full.
(ii) If after the Closing Date the Borrower or any Restricted Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness for Borrowed Money, other than that Indebtedness for Borrowed Money permitted by Section 6.11 hereof8.7 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 to be received by the Borrower or such Subsidiary in respect incurrence. Within five Business Days after receipt thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) , 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first by the Borrower to prepay the outstanding Term A Loans, CapEx Loans and Delayed Draw relevant Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of any Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving Loans, Swing Loans, and, if necessary, prefund 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 Line Revolving Loans, Swing Loans, and U.S. Dollar Equivalent of Credit Loans and all L/C Obligations then outstanding with respect to such Class to the amount to which the Line of 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 U.S. Dollar Equivalent of all L/C Obligations then outstanding of any Class shall be in excess of the Revolving Credit Commitments of such Class in effect at such time, the Borrower shall immediately and without notice or demand pay over the 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 applied to the Revolving Loans and Swing Loans until paid in full with any remaining balance to be held by the 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) If the Borrower any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 500,000 individually or on a cumulative basis in any fiscal yearyear of Credit Parties, then (x) the Borrower Representative 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 the Borrower such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within five (5) Business Days) upon receipt by the Borrower any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $500,000; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower Representative states in its notice of such event that the Borrower applicable Credit Party or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 the BorrowerBorrower Representative’s notice with such 180-day period, and promptly . Promptly after the end of such 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 and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the amounts outstanding under each of Term Loans Loan A-1 and Term Loan A-2 in equal amounts until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Fourth Restatement Closing Date the Borrower any Credit Party or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (Ca) equity securities issued in connection with the exercise of employee stock options, and (Db) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted the exercise of the Cure Right, (c) equity securities issued by the terms hereofa Subsidiary to another Credit Party, if any(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 (other than that permitted by Section 6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the Borrower account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days) upon receipt by the Borrower such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence the Borrower assumption Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the amounts outstanding under each of Term A Loans, CapEx Loans Loan A-1 and Delayed Draw Term Loans pro rata Loan A-2 in equal amounts until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal yearRevolving Loans, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.Swing
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) If Subject to clause (iv) of this Section 2.03(b), if the Borrower or any Subsidiary shall at of its Restricted Subsidiaries Disposes of any time or from time to time make a property (other than any Disposition or shall suffer an Event permitted under Section 7.05 (other than clause (d) thereof)) which results in the realization by such Person of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in or the Borrower or any fiscal yearof its Restricted Subsidiaries receives any Net Cash Proceeds of casualty insurance or condemnation awards, then (x) the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of Term Loans equal to 100% of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be (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 of such Disposition), 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 Net Cash Proceeds in respect thereofoperating assets, provided that, (i) within 180 days after the 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); and (y) promptly upon receipt by the Borrower or the Subsidiary of the with respect to any Net Cash Proceeds of such Disposition casualty insurance or such Event condemnation awards, at the election of Loss, the Borrower shall prepay (as notified by the Obligations in an aggregate amount equal Borrower to 100% the Administrative Agent on or prior to the date of the amount receipt of all such Net Cash Proceeds; providedProceeds of casualty insurance or condemnation awards), in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then existsshall have occurred and be continuing, the Borrower shall not be required to make a mandatory prepayment under this Section in respect or such Restricted Subsidiary may apply within 180 days after the receipt of such Net Cash Proceeds to replace or repair the extent equipment, fixed assets or real property in respect of which such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, were received; and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such provided that any Net Cash Proceeds not so invested referred to above in (x) or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds to be so reinvested shall be required under this clause deposited in the Cash Collateral Account pending such reinvestment and, provided, further, that any amount referred to above in (i). The amount of each such prepayment x) or (y) which is not so reinvested within the time specified therein shall be applied first to the outstanding Term Loans until paid as set forth in full and then to the Line clause (iv) of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullthis Section 2.03(b).
(ii) If after Subject to clause (iv) of this Section 2.03(b), upon the Closing Date sale or issuance by the Borrower or any Subsidiary shall issue of its Restricted Subsidiaries of any new equity securities of its Equity Interests (other than (A) Specified Preferred issued Excluded Issuances and any sales or issuances of Equity Interests to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofanother Loan Party), the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of the estimated Term Loans equal to 50% of all Net Cash Proceeds of such issuance or incurrence to be received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary in respect thereof. Promptly 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 immediately upon receipt thereof by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this AgreementRestricted Subsidiary.
(iiiiv) On or before Notwithstanding anything to the date that is thirty (30) days after the date annual financial statements are contrary herein, prepayments made and required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were made; provided that2.03(b), the amount required to be paid under this Section 2.8(b)(iii) shall not in any event be reduced to less than zero, together with repayments made and no such voluntary prepayments shall reduce payments required to be made by the Borrower under this Section 2.8(b)(iii2.04, (a) in any year following the year immediately subsequent 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 year such voluntary payments were madeMaturity Date shall not exceed an aggregate amount of $260,000,000.
(ivv) The Borrower shallEach prepayment of Term Loans made prior to the Maturity Date pursuant to this Section 2.03(b) shall be applied, first, in direct order of maturities, to any principal repayment installments of the Term Facility that are due within 12 months after the date of such prepayment, second, on each date a pro rata basis, to the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum other principal repayment installments of the aggregate principal amount of Line of Credit Loans Term Facility, and L/C Obligations then outstanding shall be paid to the amount to which Lenders under the Line of Credit Commitments have been so reducedTerm Facility in accordance with their respective Applicable Percentages.
Appears in 1 contract
Mandatory. (i) Upon any Extraordinary Receipt received by or paid to or for the account of the Borrower or any of its Subsidiaries (other than any Excluded Joint Venture) in respect 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 prepay an aggregate principal amount of Loans 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 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 Subsidiary shall at of its Subsidiaries (other than any time 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 from time to time make a Disposition or shall suffer an Event (k)) which results in the realization by such Person of Loss resulting in Net Cash Proceeds in an amount exceeding excess of either (A) $100,000 2,500,000 for any Disposition or series of related Dispositions or (B) $5,000,000 in the aggregate during any fiscal yearyear (without regard to the size of any one Disposition or series of related Dispositions pursuant to (A) above), then (x) the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of Loans equal to 100% of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be 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 respect thereofclause (iii) below); provided that so long as no Default shall have occurred and be continuing, (yA) promptly upon receipt by if the Borrower or the Subsidiary of intends to reinvest the Net Cash Proceeds thereof in assets used or useful in the business, it shall deliver written notice of such Disposition intention to the Administrative Agent on or such Event of Loss, prior to the fifth Business Day immediately following the date on which the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all receives such Net Cash Proceeds; provided, in the case of (xB) each Disposition and Event of Loss, if the Borrower states in its notice of shall have delivered such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Lossnotice, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in may be reinvested within 12 months after the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect 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 extent Administrative Agent certifying that all, or, subject to the immediately succeeding proviso, part of, such Net Cash Proceeds are actually invested or have been reinvested in accordance with the proviso of this Section 2.05(b)(ii) and, as described in the Borrower’s notice with such 180-day perioda result, and promptly after the end of such 180-day period, the Borrower no mandatory prepayments shall promptly prepay the Obligations in the amount of such be required under this Section 2.05(b)(ii); provided further that any Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds at the end of business interruption insurance maintained such period shall be immediately applied to the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under the Loans as set forth in this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement2.05.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered Each prepayment of Loans pursuant to this Section 6.1(b2.05(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first ratably to the outstanding Term Loans until paid in full A Facility and, if applicable, the Incremental Term Facilities and then to the Line principal repayment installments thereof in direct order of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madematurity.
(iv) The Borrower shall, on each date [Reserved].
(v) Notwithstanding the Line provisions of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and2.05(b)(i) or (b)(ii), if necessary, prefund any mandatory prepayments under Section 2.05(b)(i) or (b)(ii) would result in the L/C Obligations by Borrower incurring any obligation (as determined in the amount, if any, necessary to reduce the sum reasonable judgment of the aggregate principal amount Borrower) under Section 3.05 as a result of Line any such mandatory prepayment of Credit Eurodollar Rate Loans and L/C Obligations then outstanding prior to the amount to 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 the Line of Credit Commitments such mandatory prepayment would otherwise have been so reducedrequired to be made; 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 (b)(ii) and any excess shall then be applied as provided in this Section 2.05(b)(v).
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Samples: Credit Agreement (AdvanSix Inc.)
Mandatory. (i) If the Borrower Upon receipt by any Loan Party or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in its --------- Subsidiaries of Net Cash Proceeds in an amount exceeding $100,000 in from any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of LossAsset Disposition, the Borrower shall prepay the Obligations then outstanding Advances in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar likeone-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five hundred percent (25100%) of such Net Cash Proceeds payable concurrently with consummation of such Asset Disposition; provided that no such prepayment need be made (1) unless the -------- Net Proceeds from any single Asset Disposition or series of related Asset Dispositions exceed $100,000 (in which case a prepayment shall be made in the amount of the entire Asset Disposition) or until the cumulative Net Proceeds from all Asset Dispositions by the Borrower in any particular fiscal year exceed $100,000 (in which case a prepayment shall be made in the amount of the Net Proceeds from the issuance specific Asset Disposition (or portion thereof) causing the limit to be exceeded), except that the terms of this Section shall not be applicable with respect to Asset Dispositions by the Borrower or any Subsidiary if the Net Proceeds therefrom are reinvested in fixed assets (for use in its business or, with respect to the Borrower, the business of the Subsidiaries) within 180 days of such new equity securities and Asset Disposition, provided that any such Net Proceeds -------- not so reinvested shall be used to prepay the Advances on the 181st day; provided, however, that with respect to the Net Proceeds from the Orpington -------- ------- Sale/Leaseback, the Borrower shall have twenty-four (y24) months from the closing of the Orpington Sale/Leaseback to reinvest such Net Proceeds in fixed assets (for use in its business), provided, that, if such Net Proceeds from the -------- Orpington Sale/Leaseback are not so reinvested within such twenty-four (24) month period, any such Net Proceeds not so reinvested shall be used to prepay the Advances on the Business Day immediately succeeding the second anniversary of the closing of the Orpington Sale/Leaseback.
(ii) Upon receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds from any Equity Issuance, the Borrower shall prepay the then outstanding Advances in an amount equal to one hundred percent (100%) of the such Net Cash Proceeds payable concurrently with consummation of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreementissuance.
(iii) On Upon receipt by the Borrower or before any of its Subsidiaries of Net Cash Proceeds from the date that is thirty sale or issuance by the Borrower or any of its Subsidiaries of any Debt (30) days after the date annual financial statements are required other than Debt permitted to be delivered pursuant to incurred under Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 20137.02), the Borrower shall prepay the then-then outstanding Loans by Advances in an amount equal to one hundred percent (x100%) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount Net Cash Proceeds payable concurrently with consummation of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madesale or issuance.
(iv) Each prepayment made pursuant to clause (i), (ii), or (iii) shall be applied to prepay the Facilities in the following manner: first, to ----- prepay Revolving Advances then outstanding until such Revolving Advances are paid in full and second, to prepay Letter of Credit Advances then outstanding ------ until such Advances are paid in full.
(v) The Borrower shall, on within fifteen (15) days following the end of each date month in each Fiscal Year, pay to the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund Administrative Agent for deposit in the L/C Obligations by the amount, if any, necessary Cash Collateral Account an amount sufficient to reduce the sum of cause the aggregate principal amount on deposit in such Account to equal the amount by which the aggregate Available Amount of Line all Letters of Credit Loans and L/C Obligations then outstanding to exceeds the amount to which the Line Letter of Credit Commitments have been so reducedFacility on such Business Day.
(vi) The foregoing notwithstanding, the provisions of this subsection 2.06(b) shall not be construed to permit any Equity Issuance, Debt issuance or Asset Disposition otherwise prohibited under the terms of this Agreement.
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Mandatory. (i) If the Borrower Borrowers or any Subsidiary of their respective Subsidiaries shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 10,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrowers, then (x) the Borrower 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 the such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower such Borrowers or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to one hundred percent (100% %) of the amount of all such Net Cash ProceedsProceeds in excess of $10,000,000; provided, that in the case of (x) each Disposition and Event of Loss, if the Borrower 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 180 days twelve (12) months 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 or other assets used a restoration or useful in repair of the Borrower and its Subsidiaries’ business other than inventoryProperty 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, the Borrower shall not be required to make a mandatory prepayment under this Section in respect of reborrow such Net Cash Proceeds to the extent for investment or reinvestment so long as such Net Cash Proceeds are actually invested or reinvested as described in the BorrowerBorrowing Agent’s notice within such twelve (12) month period and otherwise in accordance with such 180-day periodthe provisions of the applicable Loan Documents (including, and promptly without limitation, any requirements specifically set forth in the Mortgages). Promptly after the end of such 180-day twelve (12) month period, the Borrowing Agent shall notify the Administrative Agent whether such Borrower 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 so invested or reinvested, the Administrative Agent shall promptly prepay the Obligations release any applicable reserve in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Revolving Loans until paid in full and then to the Line Swing Loans. To the extent that the Administrative Agent directly receives any Net Cash Proceeds resulting from an Event of Credit Loans (without any reduction Loss, the Administrative Agent shall apply the amount of such Net Cash Proceeds to the Obligations as outlined in the Line of Credit Commitments) until paid in fullthis Section 2.8(b).
(ii) If after the Closing Date the Borrower or On any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereofRevaluation Date, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower aggregate principal amount of outstanding Multicurrency Revolving Loans shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the exceed an amount equal to (x) twenty five percent (25%) 105% of the Multicurrency Revolving Commitments, the Borrowers shall immediately repay such Multicurrency Revolving Loans in an amount sufficient to reduce such aggregate principal amount as of such Net Cash Proceeds from the issuance date of such new equity securities and (y) one hundred percent (payment to an amount not to exceed 100%) % of the Net Cash Proceeds of the incurrence of any Multicurrency Revolving Commitments (such Indebtedness. The amount of each such prepayment shall repayment to be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid as set forth in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement2.9).
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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.[Intentionally Omitted]
(iv) The Borrower Borrowers shall, on each date the Line of Domestic Revolving Credit Commitments or the Multicurrency Revolving Commitments, as applicable, are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of Domestic Revolving Credit Commitments or the Multicurrency Revolving Commitment, as applicable, have been so reduced.
(v) Unless the Borrowers otherwise direct, 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 Eurocurrency 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 Swing Loans or Eurocurrency 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 7.4.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations Revolving Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of any Disposition of or Event of Loss with respect to assets with a value not exceeding 10% of the aggregate book value of the total consolidated assets of the Borrower and its Subsidiaries immediately prior to such Disposition or Event of Loss so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 90 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations Revolving Loans in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term Revolving Loans until paid in full of the several Lenders 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 (or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C1) equity securities issued in connection with the exercise of employee stock optionsoptions or pursuant to the Borrower's employee stock purchase or 401(k) plans, and (D2) equity securities capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by hereby and (3) other issuances of equity securities the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofNet Cash Proceeds of which do not exceed $5,000,000 in the aggregate during the term of this Agreement, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations Revolving Loans in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term A Loans, CapEx Revolving Loans and Delayed Draw Term Loans pro rata until paid in full and then to of the Line of Credit Loans (without any reduction in several Lenders based on the Line of Credit Commitments) until paid in fullprincipal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(h) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Revolving Loans by in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term Revolving Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in fullseveral Lenders based on the principal amounts thereof. Any voluntary prepayments of principal The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by breach of Section 8.7 hereof or any other terms of the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) If at any time after the occurrence of the Borrowing Base Condition the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined and computed, the Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans and Swing Loans until payment in full thereof with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(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 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Samples: Credit Agreement (Plexus Corp)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 (or the U.S. Dollar Equivalent thereof, if applicable) individually or on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay first, (A) during the Availability Period, the Term Loans, and (B) after the Availability Period, the Term Loans and the Capital Expansion Loans, in each case in the manner specified in Section 1.9(e) hereof until the Term Loans and, if applicable, the Capital Expansion Loans are paid in full and then the Revolving Loans, Swing Loans and L/C Obligations (or all outstanding Loans and L/C Obligations if an Event of Default exists) in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful for use in the Borrower and its Subsidiaries’ ordinary course of the Borrower’s or the applicable Subsidiary’s business other than inventoryas then conducted, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice such assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the 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 Borrower shall promptly prepay (A) during the Availability Period, the Term Loans, and (A) after the Availability Period, the Term Loans and the Capital Expansion Loans, (or in each case all outstanding Loans and L/C Obligations if an Event of Default exists) in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full and then to Obligations based on the Line of Credit Loans principal amounts (without any reduction in the Line U.S. Dollar Equivalent) thereof. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Commitments) until paid such Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in fullthe 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 Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, options and (D) equity securities capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofhereby, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay first, (A) during the Obligations Availability Period, the Term Loans, and (B) after the Availability Period, the Term Loans and the Capital Expansion Loans, in each case in the amount equal to (xmanner specified in Section 1.9(e) twenty five percent (25%) of such Net Cash Proceeds from hereof until the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until and, if applicable, the Capital Expansion Loans are paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal yearRevolving Loans, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Swing Loans and L/C Obligations then (or all outstanding Loans and L/C Obligations if an Event of Default exists), in an aggregate amount equal to 100% (or 50% if the amount Borrower’s Total Funded Debt Ratio was less than 2.0 to which 1.0 for the Line two consecutive fiscal quarters immediately preceding the date of Credit Commitments have been so reduced.such
Appears in 1 contract
Samples: Credit Agreement (Penford Corp)
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.
(ii) If the Borrower or any Subsidiary shall at of its Subsidiaries (other than the Immaterial ACO Subsidiaries) Disposes of any time property, other than pursuant to any Excepted Disposition, and the aggregate or from time to time make a Disposition or shall suffer an Event individual Dispositions result in the realization by such Persons of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year10 million, then (x) the Borrower shall promptly notify make a mandatory prepayment by prepaying an aggregate principal amount of Loans equal to 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 of such proposed Disposition or Disposition), and so long as no Event of Loss (including the amount of the estimated Net Cash Proceeds to Default shall have occurred and be received by continuing, the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower may reinvest all or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect any portion of such Net Cash Proceeds in assets useful in the business of the Borrower or its Subsidiaries so long as (x) within 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 extent Administrative Agent), or (y) within 12 months after the receipt of such Net Cash Proceeds, the Borrower or such Subsidiary shall have entered into a definitive agreement to reinvest such Net Cash Proceeds are actually invested or reinvested as described in assets useful in the Borrower’s notice with such 180-day periodbusiness of the Borrower or its Subsidiaries, and promptly the purchase of such assets shall have been consummated within six months after the end of such 180-day 12 month period; and provided further, the Borrower shall promptly prepay the Obligations in the amount of such however, that any Net Cash Proceeds not subject to such definitive agreement or so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent prepayment of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary Loans as set forth in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 made2.05(b)(ii).
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (Indebtedness for Borrowed Money, other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that for Borrowed Money permitted by Section 6.11 8.7(a)-(e) and (g)-(m) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations Term Loans in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iiiii) On If the Borrower or before any Subsidiary shall at any time or from time to time make or agree to make a Disposition of, or shall suffer an Event of Loss with respect to, any Property (including, without limitation, any intellectual property) or shall receive any Extraordinary Income, then the date that is thirty Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss or Extraordinary Income (30) days after including the date annual financial statements are required amount of the estimated Net Cash Proceeds to be delivered pursuant to Section 6.1(breceived by the Borrower or such Subsidiary in respect thereof) and, promptly upon receipt (but in no event later than 5 Business Days after receipt) by the Borrower or such Subsidiary of each fiscal year, beginning with the fiscal year ending on Net Cash Proceeds of such Disposition or about December 31, 2013Event of Loss or Extraordinary Income, the Borrower shall prepay the then-outstanding Loans by Obligations in an aggregate amount equal to 50% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the applicable ECF Percentage for relevant Property in accordance with the most recently completed relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the BorrowerBorrower not exceeding $50,000 in the aggregate so long as no Default or Event of Default then exists, multiplied by and (yz) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if the fiscal year ending on Borrower states in its notice of such event that the Borrower or about December 31the relevant Subsidiary intends to reinvest, 2013, for the period commencing on the first day within 90 days of the first month following applicable Disposition, the Restatement Effective Date through Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 90-day period. Promptly after the end of such fiscal year) 90-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of Revolving Credit. If the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of Administrative Agent or the Term Loans made during any year shall reduceRequired Lenders so request, by the amount all proceeds of such voluntary prepaymentsDisposition or Event of Loss shall be deposited with the Administrative Agent (or its agent) and held by it in the Collateral Account. So long as no Default or Event of Default exists, the amount required Administrative Agent is authorized to be paid by disburse amounts representing such proceeds from the Borrower under this Section 2.8(b)(iii) during Collateral Account to or at the year immediately subsequent Borrower's direction for application to or reimbursement for the year costs of replacing, rebuilding or restoring 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 madeProperty.
(iviii) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Revolving 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 Line of Credit Revolving Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(iv) Unless the Borrower otherwise directs, prepayments of Loans 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, 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 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Samples: Credit Agreement (CalAmp Corp.)
Mandatory. (i) If at any time the sum of the unpaid principal balance of the Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately and without notice or demand 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 applied to the Swingline Loans and Revolving Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the L/C Obligations.
(ii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to reinvest in fixed or capital assets used or useful in the Borrower’s or another Loan Party’s business in accordance with this paragraph, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $200,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition above and any Event of Loss, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, as applicable, the Net Cash Proceeds thereof in similar like-kind assets fixed or other capital assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryBorrower’s or another Loan Party’s business, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Loan Party 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 Obligations in the amount of such Net Cash Proceeds not so invested reinvested. If the Administrative Agent or reinvested and (y) Net Cash Proceeds constituting the Required Lenders so request, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Administrative Agent (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no 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 Credit Commitments) until paid reinvesting in fullsuch assets.
(iiiii) If after the Closing Date the Borrower or any Subsidiary Loan Party shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the Borrower or account of such Subsidiary Loan Party in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary Loan Party of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall (A) with respect to the Initial Equity Issuance, prepay the Obligations in the an aggregate amount equal to (x1) twenty five percent to the extent any Delayed Draw Term Loan is then outstanding, the least of (25%i) $20,000,000 plus the aggregate principal amount of all Revolving Loans and Swingline Loans outstanding at such time, (ii) $30,000,000 and (iii) 100% of the amount of such Net Cash Proceeds, and (2) to the extent no Delayed Draw Term Loans are then outstanding, the Delayed Draw Term Loan Commitments are then in effect and the amount of such Net Cash Proceeds from exceeds $20,000,000, the issuance least of (i) the aggregate principal amount of all Revolving Loans and Swingline Loans outstanding at such new equity securities time, (ii) $10,000,000 and (yiii) one hundred percent (100%) of the amount by which such Net Cash Proceeds exceed $20,000,000 (it being understood for the avoidance of doubt, that the Borrower shall permitted to retain any proceeds of the incurrence Initial Equity Issuance in excess of any such Indebtedness. The the amounts required to be prepaid pursuant to this clause (A)), and (B) with respect all other equity issuances (other than the Initial Equity Issuance or Excluded Equity Issuances), prepay the Obligations in an aggregate amount equal to 100% of the amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullNet 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 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date any Loan Party shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013such Loan Party in respect thereof. Promptly upon receipt by such Loan Party of Net Cash Proceeds of such issuance, the Borrower shall prepay the thenObligations in an aggregate amount equal to 100% of 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 8.7 or any other terms of the Loan Documents.
(v) Within three (3) Business Days after receipt of the Borrower’s year-outstanding Loans end audited financial statements, and in any event within 125 days after the end of each Fiscal Year of the Borrower (commencing with the Fiscal Year of the Borrower ending on or about December 27, 2019), the Borrower shall prepay the Obligations by an amount equal to 50% (xthe “Prepayment Percentage”) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Excess Cash Flow of the Borrower and its Subsidiaries for such fiscal year Fiscal Year less the aggregate amount of voluntary prepayments of principal of Term Loans and voluntary prepayments of principal of Revolving Loans (or, in to the case extent such voluntary prepayment of Revolving Loans is accompanied by a concurrent permanent reduction of the fiscal year ending on or about December 31Revolving Credit Commitment) made by the Borrower pursuant to Section 2.8(a) hereof; provided, 2013however, that the Prepayment Percentage shall be reduced to 25% for any Fiscal Year of the Borrower with respect to which the Total Leverage Ratio as of the last day of such Fiscal Year of the Borrower (as evidenced by financial statements and compliance certificates provided to the Administrative Agent for the period commencing on relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 2.0 to 1.0; provided further, however, that the first Prepayment Percentage shall be reduced to 0% for any Fiscal Year of the Borrower with respect to which the Total Leverage Ratio as of the last day of such Fiscal Year of the first month following Borrower (as evidenced by financial statements and compliance certificates provided to the Restatement Effective Date through Administrative Agent for the end relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 1.0 to 1.0.
(vi) If after the Closing Date, (A) the Borrower or any other Loan Party shall receive any payment in connection with a claim under the Xxxx R&W Insurance Policy (but in any event excluding any amounts so received that are applied, or to be applied, by the Borrower or such other Loan Party for the purpose of (i) payment of (or reimbursement of payments made for) claims and settlements to third Persons that are not Affiliates of a Loan Party, or (ii) covering any out-of- pocket expenses (including out-of-pocket legal expenses and any taxes) incurred by the Borrower or such other Loan Party in connection with obtaining such insurance payment or remediating any damages caused by any matter related to such claim under the Xxxx R&W Insurance Policy) (each such payment, a “Xxxx R&W Insurance Policy Payment”), then the Borrower shall, within three (3) Business Days after receipt thereof, prepay the Obligations in an aggregate amount equal to 100% of the amount of such fiscal yearXxxx R&W Insurance Policy Payment.
(vii) . The amount of each such prepayment under clauses (ii), (iii), (iv), (v) and (vi) of this Section 2.8(b) shall be applied (A) first to the outstanding Term Loans (to be applied on a ratable basis among the Delayed Draw Term Loans and Incremental Term Loans (if any) based on the outstanding principal amounts thereof) until paid in full and (B) then, without a reduction of the Revolving Credit Commitments, to the Swingline Loans and Revolving Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the L/C Obligations in accordance with Section 9.4; provided that the amount of the prepayment under clause (iii)(A)(1) of this Section 2.8(b) shall be applied first to the outstanding Delayed Draw Term Loans (to be applied, notwithstanding anything in Section 2.8(c) to the contrary, on a ratable basis among all such remaining amortization payments thereon based on the principal amounts thereof) up to $20,000,000 and, second, without a reduction of the Revolving Credit Commitments, to the Swingline Loans and Revolving Loans until paid in full and then to full; provided further that the Line amount of Credit Loans the prepayment under clause (iii)(A)(2) of this Section 2.8(b) shall be applied, without a reduction of the Line of Revolving Credit Commitment) Commitments, to the Swingline Loans and Revolving Loans until paid in full. Any voluntary Unless the Borrower otherwise directs, prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii2.8(b) during 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 year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b)(iii2.8(b) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required made by the payment of the principal amount to be made under this Section 2.8(b)(iii) prepaid and, in the case of any year following the year immediately subsequent Term Loans or Eurodollar Loans or Swingline Loans, accrued interest thereon to the year such voluntary payments were madedate of prepayment together with any amounts due the Lenders under Section 4.5.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
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Mandatory. (i) If for any reason the Borrower or any Subsidiary shall Total Outstandings at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting exceed the Aggregate Commitments then in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Losseffect, the Borrower shall immediately prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsexcess; provided, in the case of (x) each Disposition and Event of Losshowever, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under Cash Collateralize the L/C Obligations pursuant to this Section 2.06(b) unless after the prepayment in respect 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 7.5% 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 from the termination of such Hedge Transaction or the Disposition of such assets shall be applied to reduce or eliminate any Borrowing Base Deficiency resulting from such reduction.
(iii) To the extent not covered by (ii), if the Borrower or any of its Subsidiaries Disposes of any property under Section 7.05(g) or suffers a Casualty Event which results in the realization by such Person of Net 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 constitute Net Cash Proceeds to the extent that (A) such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Borrower or a Subsidiary 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 or (B) if the applicable Borrower or 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 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 Casualty Event shall not constitute Net Cash Proceeds to the extent that such proceeds are actually invested reinvested in replacement properties or reinvested as described assets, or other productive properties or assets, acquired by the Borrower or a Guarantor of a kind then used or usable in the Borrower’s notice business of the applicable Person (with such 180-day period, and promptly after equal or greater aggregate Attributed Value) within 180 days from the end date of such 180-day periodreceipt thereof.
(iv) 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 promptly prepay the Obligations in the an aggregate principal amount of such Loans equal to 100% of all Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to clause (xv) twenty five percent below).
(25%v) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) Prepayments of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment Total Outstandings made pursuant to this Section 2.06(b), first, shall be applied first ratably to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund the L/C Obligations by Borrowings, second, shall be applied ratably to the amountoutstanding Loans, if anyand, necessary third, shall be used to reduce Cash Collateralize the sum of the aggregate principal amount of Line of Credit Loans and remaining L/C Obligations then outstanding to Obligations. Upon the amount to which the Line drawing of any Letter of Credit Commitments have that has been so reducedCash 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.
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Mandatory. (ia) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearThe Company shall, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower Parent or the Subsidiary Company of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of any Net Cash Proceeds from an Event the incurrence, sale or issuance of Lossthe Take-Out Securities, the Net Cash Proceeds thereof in similar like-kind assets deposit or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not cause to 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in deposited the amount of such Net Cash Proceeds (in an amount not so invested to exceed the amount necessary to pay the Obligations due to the Holders in full) with the Indenture Trustee or reinvested and any Paying Agent for prepayment of Securities in accordance with Section 902(d).
(yb) The Company shall, upon receipt by the Parent or any Subsidiary of the Parent of the Net Cash Proceeds constituting proceeds of business interruption insurance maintained from any Asset Sale, deposit or cause to be deposited the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment amount of such Net Cash Proceeds with the Indenture Trustee or any Paying Agent for prepayment of Securities in accordance with Section 902(d) to the extent any such Net Cash Proceeds are not used to (i) prepay Senior Outstandings or to cash collateralize letters of credit outstanding under the Senior Credit Agreement (and, in the case of any revolving credit Indebtedness under the Senior Credit Agreement, with corresponding commitment reductions thereunder) or (ii) in the case where there are no Senior Outstandings, to permanently reduce Senior Commitments, provided that (1) during any Fiscal Year, no such deposit or prepayment shall be required with respect to the first $5,000,000 in Net Cash Proceeds received in connection with any Asset Sale, (2) no such deposit or prepayment shall be required from Net Cash Proceeds until such Net Cash Proceeds aggregate $1,000,000 or more and (3) the Company shall not be required to so apply such Net Cash Proceeds in the case where such Net Cash Proceeds (in a total amount of up to $50,000,000 in the aggregate since the Effective Date) are used to make a Permitted Acquisition or acquire replacement or fixed assets useful in the business of the Company or any of its Subsidiaries or to effect repairs or replacements of the assets disposed of, in each case within 180 days of the receipt of such Net Cash Proceeds.
(c) The Company shall, upon receipt by the Parent or any Subsidiary of the Parent of the Net Cash Proceeds from any Debt Issuance, deposit or cause to be deposited the amount of such Net Cash Proceeds with the Indenture Trustee or any Paying Agent for prepayment of Securities in accordance with Section 902(d), to the extent any such Net Cash Proceeds are not used to (i) prepay Senior Outstandings or to cash collateralize letters of credit outstanding under the Senior Credit Agreement (and, in the case of any revolving credit Indebtedness under the Senior Credit Agreement, with corresponding commitment reductions thereunder) or (ii) in the case where there are no Senior Outstandings, to permanently reduce Senior Commitments, provided that no such deposit or prepayment under this clause Section 902(c) shall be required from Net Cash Proceeds until such Net Cash Proceeds aggregate $1,000,000 or more.
(id) On the Prepayment Date, the Indenture Trustee or any Paying Agent shall use such Net Cash Proceeds deposited with it pursuant to Section 902(a), (b) and (c) to prepay Outstanding Securities at the Prepayment Price. The amount of each Each such prepayment shall be applied first ratably to the outstanding Term Loans until paid in full Securities, and then to the Line of Credit Loans (without remaining installments thereof pro rata. Amounts deposited with the Indenture Trustee or any reduction in the Line of Credit Commitments) until paid in fullPaying Agent under this Section 902 may not be withdrawn except to effect such prepayment as provided herein.
(iie) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary All prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent 902 shall be made together with accrued interest to the year date of such voluntary prepayments were made; provided that, prepayment on 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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedprepaid.
Appears in 1 contract
Samples: Indenture (Warnaco Group Inc /De/)
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.
(ii) If the Borrower or any Subsidiary shall at of its Restricted Subsidiaries Disposes of any time or from time property, other than pursuant to time make a Disposition or shall suffer an Event any Excepted Disposition, which results in the realization by such Person of Loss resulting in Net Cash Proceeds in an amount exceeding equal to more than $100,000 25,000,000 (or $15,000,000 if a Default has occurred and is continuing) (whether in any fiscal yeara single transaction or on an aggregate basis), then (x) but only if a Rating Condition exists on the date such monetary threshold is met, the Borrower shall promptly notify make a mandatory prepayment by 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 election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to Disposition), and so long as no Default shall have occurred and be received by continuing, the Borrower or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in respect thereofassets useful in the business of the Borrower and its Restricted Subsidiaries so long as (i) and within 12 months after the receipt of such Net Cash Proceeds, the purchase shall have been consummated (y) promptly upon receipt 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 of the 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 Disposition 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) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(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 amendment or supplement to this Agreement executed in connection with such Event Additional Term Loan Facility otherwise provides), in direct order of Lossmaturity 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 Term Facility or Additional Term Facility, as applicable, in which event the Borrower 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 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 100% such excess.
(v) Prepayments of the 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 all the Outstanding Amount of the L/C Obligations is then required, but has not been effected, hereunder, to such Net Cash ProceedsCollateralization; providedand, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days prepayments 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be Revolving Credit Facility required pursuant to 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 with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this 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. The amount Upon the drawing of each such prepayment any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date further action by or notice to or from the Borrower or any Subsidiary shall issue any new equity securities (other than (ALoan Party) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund reimburse the L/C Obligations by Issuer or the amountRevolving Credit Lenders, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedas applicable.
Appears in 1 contract
Samples: Credit Agreement (Universal American Financial Corp)
Mandatory. (i) If at any time the sum of the unpaid principal balance of the Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately and without notice or demand 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 applied to the Swingline Loans and Revolving Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the L/C Obligations.
(ii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to reinvest in fixed or capital assets used or useful in the Borrower’s or another Loan Party’s business in accordance with this paragraph, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $200,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition above and any Event of Loss, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, as applicable, the Net Cash Proceeds thereof in similar like-kind assets fixed or other capital assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryBorrower’s or another Loan Party’s business, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such assets with such 180-day 180‑day period, and promptly . Promptly after the end of such 180-day 180‑day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Loan Party 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 Obligations in the amount of such Net Cash Proceeds not so invested reinvested. If the Administrative Agent or reinvested and (y) Net Cash Proceeds constituting the Required Lenders so request, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Administrative Agent (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no 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 Credit Commitments) until paid reinvesting in fullsuch assets.
(iiiii) If after the Closing Date the Borrower or any Subsidiary Loan Party shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the Borrower or account of such Subsidiary Loan Party in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary Loan Party of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiiv) On If after the Closing Date any Loan Party shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or before for the date account of such Loan Party in respect thereof. Promptly upon receipt by such Loan Party of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The Borrower acknowledges that is thirty its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(30v) Within three (3) Business Days after receipt of the Borrower’s year‑end audited financial statements, and in any event within 125 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning Fiscal Year of the Borrower (commencing with the fiscal year Fiscal Year of the Borrower ending on or about December 31, 20132020), the Borrower shall prepay the then-outstanding Loans Obligations by an amount equal to 50% (xthe “Prepayment Percentage”) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Excess Cash Flow of the Borrower and its Subsidiaries for such fiscal year Fiscal Year less the aggregate amount of voluntary prepayments of principal of Term Loans and voluntary prepayments of principal of Revolving Loans (or, in to the case extent such voluntary prepayment of Revolving Loans is accompanied by a concurrent permanent reduction of the fiscal year ending on or about December 31Revolving Credit Commitment) made by the Borrower pursuant to Section 2.8(a) hereof; provided, 2013however, that the Prepayment Percentage shall be reduced to 25% for any Fiscal Year of the Borrower with respect to which the Total Leverage Ratio as of the last day of such Fiscal Year of the Borrower (as evidenced by financial statements and compliance certificates provided to the Administrative Agent for the period commencing on relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 2.0 to 1.0; provided further, however, that the first Prepayment Percentage shall be reduced to 0% for any Fiscal Year of the Borrower with respect to which the Total Leverage Ratio as of the last day of such Fiscal Year of the first month following Borrower (as evidenced by financial statements and compliance certificates provided to the Restatement Effective Date through Administrative Agent for the end relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 1.0 to 1.0.
(vi) If after the Closing Date, (A) the Borrower or any other Loan Party shall receive any payment in connection with a claim under the Xxxx R&W Insurance Policy or any similar insurance policy issued in connection with any Acquisition (but in any event excluding any amounts so received that are applied, or to be applied, by the Borrower or such other Loan Party for the purpose of (i) payment of (or reimbursement of payments made for) claims and settlements to third Persons that are not Affiliates of a Loan Party, or (ii) covering any out-of-pocket expenses (including out-of-pocket legal expenses and any taxes) incurred by the Borrower or such other Loan Party in connection with obtaining such insurance payment or remediating any damages caused by any matter related to such claim under such insurance policy) (each such payment, a “R&W Insurance Policy Payment”), then the Borrower shall, within three (3) Business Days after receipt thereof, prepay the Obligations in an aggregate amount equal to 100% of the amount of such fiscal yearR&W Insurance Policy Payment.
(vii) . The amount of each such prepayment under clauses (ii), (iii), (iv), (v) and (vi) of this Section 2.8(b) shall be applied (A) first to the outstanding Term Loans (to be applied on a ratable basis among the Term A Loans, the Delayed Draw Term Loans and Incremental Term Loans (if any) based on the outstanding principal amounts thereof) until paid in full and then to the Line of Credit Loans (B) then, without a reduction of the Line of Revolving Credit Commitment) Commitments, to the Swingline Loans and Revolving Loans until paid in full. Any voluntary prepayments of principal of the Term Loans made during full with any year shall reduce, remaining balance to be held by the amount of such voluntary prepayments, Administrative Agent in the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund Collateral Account as security for the L/C Obligations in accordance with Section 9.4. Unless the Borrower 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 amount, if any, necessary to reduce the sum payment of the aggregate principal amount to be prepaid and, in the case of Line of Credit any Term Loans and L/C Obligations then outstanding or Eurodollar Loans or Swingline Loans, accrued interest thereon to the amount to which date of prepayment together with any amounts due the Line of Credit Commitments have been so reducedLenders under Section 4.5.
Appears in 1 contract
Mandatory. (i) If the Borrower any Loan Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower Representative 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 the Borrower applicable Loan Party or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower applicable Loan Party or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Loan Parties not exceeding $1,000,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default or Event of Default then exists, if the Borrower Representative states in its notice of such event that the applicable Loan Party or the applicable Subsidiary intends to reinvest, within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrowers shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower Representative shall notify the Administrative Agent whether the applicable Loan Party or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied applied, first to the outstanding Term Acquisition Loans until paid in full and then to the Line of Revolving Credit Loans (without any a concomitant reduction in the Line of Revolving Credit Commitments). 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 (or its agent) until paid and held by it in fullthe 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 Representative’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 any Loan Party or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to employees, directors or representatives under incentive plans and capital stock of Parent issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofhereby, the Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the Borrower account of the applicable Loan Party or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower applicable Loan Party or such Subsidiary of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower Borrowers shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 50% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Acquisition Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Revolving Credit Loans (without any a concomitant reduction in the Line of Revolving Credit Commitments) until paid in full). The Borrower Each of the Borrowers acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required to be delivered pursuant to Closing Date any Loan Party or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 6.1(b8.7(a)-(h) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013hereof, the Borrower Representative 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 applicable Loan Party or such Subsidiary in respect thereof. Promptly upon receipt by the applicable Loan Party or such Subsidiary of Net Cash Proceeds of such issuance, the Borrowers shall prepay the then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Acquisition Loans until paid in full and then to the Line of Revolving Credit Loans (without a concomitant reduction in Revolving Credit Commitments). Each of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal Borrowers acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by breach of Section 8.7 hereof or any other terms of the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(iv) The Borrower Borrowers shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower Representative otherwise directs, prepayments of Loans 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, in the case of any Acquisition Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. Subject to the ABL Intercreditor Agreement: (i%4) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (%5) if (x) the Borrower shall promptly notify or any of its Restricted Subsidiaries consummate any Asset Sale or (y) any Involuntary Disposition occurs, which results in the Administrative Agent of such proposed Disposition realization or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received receipt by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Restricted Subsidiary of the Net Cash Proceeds in excess for all such Dispositions that have occurred subsequent to the 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 such Disposition or such Event of Loss$40,000,000, the Borrower shall prepay cause to be prepaid on or prior to the Obligations date which is ten Business Days after the date of the realization or receipt of such Net Cash Proceeds an aggregate principal amount of Loans in an aggregate amount equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.03(b)(i)(A) if, on or prior to such date, the amount 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 Net Cash Proceeds; provided, Proceeds in the case of accordance with Section 2.03(b)(i)(B) (x) each Disposition and which election may only be made if no Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends Default has occurred and is then continuing). (%5) with respect to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of any Net Cash Proceeds from an Event realized or received with respect to any Disposition, at the option of Lossthe Borrower, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then existsshall have occurred and be continuing, the Borrower shall not be required to make a mandatory prepayment under this Section in respect may use all or any portion of such Net Cash Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful for its business (including for making Acquisitions) within (i) 365 days of the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount receipt of such Net Cash Proceeds not so invested or reinvested and (yii) if the Borrower enters into a legally binding commitment to use such Net Cash Proceeds constituting proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful for its business within 365 days after receipt of business interruption insurance maintained such Net Cash Proceeds, within 540 days after receipt of such Net Cash Proceeds; provided further that if any Net Cash Proceeds are not so used within the Borrower time period set forth above in this Section 2.03(b)(i)(B) or applicable Subsidiary following are no longer intended to be so used at any time after delivery of a notice of such election, an Event of Loss, no mandatory prepayment of amount equal to any such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be promptly applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent prepayment of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary Loans as set forth in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 made2.03.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Polyone Corp)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 5,000,000 individually or on a cumulative basis in any fiscal yearyear of Holdings, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100100.0% of the amount of all such Net Cash ProceedsProceeds in excess of $5,000,000 for the applicable fiscal year; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossLoss or, in 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 similar like-kind assets or other assets used or useful in the business of the Borrower and its Subsidiaries’ business Subsidiaries (other than inventorycurrent assets), then so long as no Default or Event of Default then exists, the Borrower shall not be required to 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 with within such 180365-day period (or such extension period, and promptly ). Promptly after the end of such 180365-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 applicable fiscal year not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. 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 the Line Cash Collateralize Letters of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullCredit.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) incur or incur assume any Indebtedness other than that permitted by Section 6.11 hereof7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrence assumption 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 incurrence or incurrence assumption the Borrower shall prepay the Obligations in the an amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata 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 the Line Cash Collateralize Letters of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 7.1 or any other terms of this Agreement.
(iii) On or before the date that is thirty Within fifteen (3015) days after the date annual financial statements are required to be have been delivered pursuant to Section 6.1(b) of each fiscal year), beginning with the fiscal year ending on or about December 31, 20132022, the Borrower shall prepay the then-outstanding Loans Obligations by an amount equal to (x1) the applicable ECF Percentage 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the Borrowersum 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, multiplied by during such calendar year (y) and not applied to the Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year prepayment under this clause (or, in the case of the fiscal year ending on or about December 31, 2013, iii) for the period commencing on prior year) or after the first day end of such calendar year and prior to the first month following prepayment date in this clause (iii), and to the Restatement Effective Date through 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 yearyear 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 Line of Credit Revolving Loans until paid in full (without a corresponding permanent reduction of the Line Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeCredit.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of 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 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 9.1. Each Cash Collateralization of L/C Obligations shall be made in accordance with Section 4.5.
Appears in 1 contract
Mandatory. Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount shall be permanently prepaid in the amounts set forth below upon the occurrence of any of the following events:
(i) If In the event of any Debt Issuance by the Borrower or any of its Restricted Subsidiaries on or after the Closing Date, then concurrently with receipt of Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay an aggregate principal Document Number: 1345735 -40- amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans equal to 100% of such Net Cash Proceeds.
(ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries exceed during any calendar year an amount equal to $50,000,000 (the portion of such Net Cash Proceeds that exceeds $50,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower or such Restricted Subsidiary; provided, however, that, for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Restricted Subsidiary may reinvest such Extraordinary Receipts in assets used in the businesses of the Borrower or its Restricted Subsidiaries, and in such case any such Extraordinary Receipts that have not been reinvested within one year from the receipt thereof by the Borrower or such Restricted Subsidiary shall at be immediately applied to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans.
(iii) If Net Cash Proceeds received on or after the Closing Date by the Borrower or any time of its Restricted Subsidiaries from one or from time more Dispositions (other than Dispositions to time the Borrower or to a Restricted Subsidiary permitted by Section 7.05(b)(ii)) exceed during any calendar year, an aggregate amount equal to $50,000,000 (the portion of such Net Cash Proceeds that exceeds $50,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall make a an offer to the Lenders to prepay an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to such Excess Disposition or shall suffer an Net Cash Proceeds pursuant to Section 2.03(c) and, to the extent such offer is declined, the Borrower may retain such declined amounts, provided, however, for so long as no Event of Loss resulting in Default shall have occurred and be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds (other than Net Cash Proceeds in an amount exceeding $100,000 connection with the Disposition of a Refinery) in assets used in the business of the Borrower or its Subsidiaries, and in the case of any fiscal yearExcess Disposition Net Cash Proceeds that have not been reinvested within one year from the receipt thereof by the Borrower or such Subsidiary, then (x) the Borrower shall promptly notify immediately upon the Administrative Agent expiration of such proposed Disposition or Event of Loss (including one-year period, make an offer to the Lenders to prepay an aggregate principal amount of the estimated Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to such Excess Disposition Net Cash Proceeds pursuant to Section 2.03(c).
(iv) Upon a Disposition of (A) the El Paso Refinery as permitted under Section 7.05(c)(i), the Borrower shall prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in full, and (B) the Gallup Refinery as permitted under Section 7.05(c)(ii), the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of the Net Cash Document Number: 1345735 -41- Proceeds (which amount shall be in compliance with clause (B) of Section 7.05(c)(ii)) received by the Borrower or such Subsidiary Restricted Subsidiary; provided in each case, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Permitted First Priority Refinancing Debt (or any Permitted Refinancing Indebtedness in respect thereofthereof that is secured on a pari passu basis with the Obligations) and (y) promptly upon receipt by pursuant to the Borrower or terms of the Subsidiary of documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition transaction or event (such Event of LossIndebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all may apply such Net Cash ProceedsProceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and, if so provided in the Incremental Term Loan Supplement applicable thereto, Incremental Term Loans and Other Applicable Indebtedness at such time); provided, in further, that (A) the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect portion of such Net Cash Proceeds allocated to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower Other Applicable Indebtedness shall promptly prepay the Obligations in not exceed the amount of such Net Cash Proceeds not so invested or reinvested required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Lossremaining amount, no mandatory prepayment if any, of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first allocated to the outstanding Term Loans until paid and, if so provided in full and then the Incremental Term Loan Supplement applicable thereto, Incremental Term Loans in accordance with the terms hereof to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduceand, by if applicable, the Incremental Term Loans, and the amount of such voluntary prepayments, prepayment of the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Term Loans and, if necessaryapplicable, prefund the L/C Obligations by Incremental Term Loans, that would have otherwise been required pursuant to this Section 2.03(b) shall be reduced accordingly and (B) to the amountextent 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 and, if anyso provided in the Incremental Term Loan Supplement applicable thereto, necessary to reduce Incremental Term Loans in accordance with the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedterms hereof.
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Samples: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If at any time the sum of the unpaid principal balance of the Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately and without notice or demand 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 applied to the Swingline Loans and Revolving Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the L/C Obligations.
(ii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to reinvest in fixed or capital assets used or useful in the Borrower’s or another Loan Party’s business in accordance with this paragraph, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $200,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition above and any Event of Loss, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, as applicable, the Net Cash Proceeds thereof in similar like-kind assets fixed or other capital assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryBorrower’s or another Loan Party’s business, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Loan Party 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 Obligations in the amount of such Net Cash Proceeds not so invested reinvested. If the Administrative Agent or reinvested and (y) Net Cash Proceeds constituting the Required Lenders so request, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Administrative Agent (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no 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 Credit Commitments) until paid reinvesting in fullsuch assets.
(iiiii) If after the Closing Date the Borrower or any Subsidiary Loan Party shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the Borrower or account of such Subsidiary Loan Party in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary Loan Party of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date any Loan Party shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013such Loan Party in respect thereof. Promptly upon receipt by such Loan Party of Net Cash Proceeds of such issuance, the Borrower shall prepay the thenObligations in an aggregate amount equal to 100% of 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 8.7 or any other terms of the Loan Documents.
(v) Within three (3) Business Days after receipt of the Borrower’s year-outstanding Loans end audited financial statements, and in any event within 125 days after the end of each Fiscal Year of the Borrower (commencing with the Fiscal Year of the Borrower ending on or about December 27, 2024), the Borrower shall prepay the Obligations by an amount equal to 50% (xthe “Prepayment Percentage”) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Excess Cash Flow of the Borrower and its Subsidiaries for such fiscal year Fiscal Year less the aggregate amount of voluntary prepayments of principal of Term Loans and voluntary prepayments of principal of Revolving Loans (or, in to the case extent such voluntary prepayment of Revolving Loans is accompanied by a concurrent permanent reduction of the fiscal year ending on or about December 31Revolving Credit Commitment) made by the Borrower pursuant to Section 2.8(a) hereof; provided, 2013however, that the Prepayment Percentage shall be reduced to 25% for any Fiscal Year of the Borrower with respect to which the Total Net Leverage Ratio as of the last day of such Fiscal Year of the Borrower (as evidenced by financial statements and compliance certificates provided to the Administrative Agent for the period commencing on relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 2.00 to 1.0; provided further, however, that the first Prepayment Percentage shall be reduced to 0% for any Fiscal Year of the Borrower with respect to which the Total Net Leverage Ratio as of the last day of such Fiscal Year of the first month following Borrower (as evidenced by financial statements and compliance certificates provided to the Restatement Effective Date through Administrative Agent for the end relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 1.00 to 1.0.
(vi) If after the Closing Date, (A) the Borrower or any other Loan Party shall receive any payment in connection with a claim under any insurance policy issued in connection with any Acquisition (but in any event excluding any amounts so received that are applied, or to be applied, by the Borrower or such other Loan Party for the purpose of (i) payment of (or reimbursement of payments made for) claims and settlements to third Persons that are not Affiliates of a Loan Party, or (ii) covering any out-of-pocket expenses (including out-of-pocket legal expenses and any taxes) incurred by the Borrower or such other Loan Party in connection with obtaining such insurance payment or remediating any damages caused by any matter related to such claim under such insurance policy) (each such payment, a “R&W Insurance Policy Payment”), then the Borrower shall, within three (3) Business Days after receipt thereof, prepay the Obligations in an aggregate amount equal to 100% of the amount of such fiscal yearR&W Insurance Policy Payment.
(vii) . The amount of each such prepayment under clauses (ii), (iii), (iv), (v) and (vi) of this Section 2.8(b) shall be applied (A) first to the outstanding Term Loans (to be applied on a ratable basis among the Term A Loans and Incremental Term Loans (if any) based on the outstanding principal amounts thereof) until paid in full and then to the Line of Credit Loans (B) then, without a reduction of the Line of Revolving Credit Commitment) Commitments, to the Swingline Loans and Revolving Loans until paid in full. Any voluntary prepayments of principal of the Term Loans made during full with any year shall reduce, remaining balance to be held by the amount of such voluntary prepayments, Administrative Agent in the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund Collateral Account as security for the L/C Obligations in accordance with Section 9.4. Unless the Borrower 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 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 amount, if any, necessary to reduce the sum payment of the aggregate principal amount to be prepaid and, in the case of Line of Credit any Term Loans and L/C Obligations then outstanding or SOFR Loans or Swingline Loans, accrued interest thereon to the amount to which date of prepayment together with any amounts due the Line of Credit Commitments have been so reducedLenders under Section 4.5.
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Mandatory. (i) If at any time the sum of the unpaid principal balance of the Swingline Loans, Revolving Loans, and the L/C Obligations then outstanding shall be in excess of the aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately and without notice or demand 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 applied to the Swingline Loans and Revolving Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the L/C Obligations.
(ii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to reinvest in fixed or capital assets used or useful in the Borrower’s or another Loan Party’s business in accordance with this paragraph, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any Fiscal Year of the Borrower not exceeding $200,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition above and any Event of Loss, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, as applicable, the Net Cash Proceeds thereof in similar like-kind assets fixed or other capital assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryBorrower’s or another Loan Party’s business, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Loan Party 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 Obligations in the amount of such Net Cash Proceeds not so invested reinvested. If the Administrative Agent or reinvested and (y) Net Cash Proceeds constituting the Required Lenders so request, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Administrative Agent (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no 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 Credit Commitments) until paid reinvesting in fullsuch assets.
(iiiii) If after the Closing Date the Borrower or any Subsidiary Loan Party shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the Borrower or account of such Subsidiary Loan Party in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary Loan Party of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiiv) On If after the Closing Date any Loan Party shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or before for the date account of such Loan Party in respect thereof. Promptly upon receipt by such Loan Party of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The Borrower acknowledges that is thirty its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(30v) Within three (3) Business Days after receipt of the Borrower’s year-end audited financial statements, and in any event within 125 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) end of each fiscal year, beginning Fiscal Year of the Borrower (commencing with the fiscal year Fiscal Year of the Borrower ending on or about December 31, 20132020), the Borrower shall prepay the then-outstanding Loans Obligations by an amount equal to 50% (xthe “Prepayment Percentage”) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Excess Cash Flow of the Borrower and its Subsidiaries for such fiscal year Fiscal Year less the aggregate amount of voluntary prepayments of principal of Term Loans and voluntary prepayments of principal of Revolving Loans (or, in to the case extent such voluntary prepayment of Revolving Loans is accompanied by a concurrent permanent reduction of the fiscal year ending on or about December 31Revolving Credit Commitment) made by the Borrower pursuant to Section 2.8(a) hereof; provided, 2013however, that the Prepayment Percentage shall be reduced to 25% for any Fiscal Year of the Borrower with respect to which the Total Leverage Ratio as of the last day of such Fiscal Year of the Borrower (as evidenced by financial statements and compliance certificates provided to the Administrative Agent for the period commencing on relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 2.0 to 1.0; provided further, however, that the first Prepayment Percentage shall be reduced to 0% for any Fiscal Year of the Borrower with respect to which the Total Leverage Ratio as of the last day of such Fiscal Year of the first month following Borrower (as evidenced by financial statements and compliance certificates provided to the Restatement Effective Date through Administrative Agent for the end relevant Fiscal Year in accordance with Section 8.5 hereof) is less than 1.0 to 1.0.
(vi) If after the Closing Date, (A) the Borrower or any other Loan Party shall receive any payment in connection with a claim under the Xxxx R&W Insurance Policy or any similar insurance policy issued in connection with any Acquisition (but in any event excluding any amounts so received that are applied, or to be applied, by the Borrower or such other Loan Party for the purpose of (i) payment of (or reimbursement of payments made for) claims and settlements to third Persons that are not Affiliates of a Loan Party, or (ii) covering any out-of-pocket expenses (including out-of-pocket legal expenses and any taxes) incurred by the Borrower or such other Loan Party in connection with obtaining such insurance payment or remediating any damages caused by any matter related to such claim under such insurance policy) (each such payment, a “R&W Insurance Policy Payment”), then the Borrower shall, within three (3) Business Days after receipt thereof, prepay the Obligations in an aggregate amount equal to 100% of the amount of such fiscal yearR&W Insurance Policy Payment.
(vii) . The amount of each such prepayment under clauses (ii), (iii), (iv), (v) and (vi) of this Section 2.8(b) shall be applied (A) first to the outstanding Term Loans (to be applied on a ratable basis among the Term A Loans, the Delayed Draw Term Loans and Incremental Term Loans (if any) based on the outstanding principal amounts thereof) until paid in full and then to the Line of Credit Loans (B) then, without a reduction of the Line of Revolving Credit Commitment) Commitments, to the Swingline Loans and Revolving Loans until paid in full. Any voluntary prepayments of principal of the Term Loans made during full with any year shall reduce, remaining balance to be held by the amount of such voluntary prepayments, Administrative Agent in the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund Collateral Account as security for the L/C Obligations in accordance with Section 9.4. Unless the Borrower 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 amount, if any, necessary to reduce the sum payment of the aggregate principal amount to be prepaid and, in the case of Line of Credit any Term Loans and L/C Obligations then outstanding or Eurodollar Loans or Swingline Loans, accrued interest thereon to the amount to which date of prepayment together with any amounts due the Line of Credit Commitments have been so reducedLenders under Section 4.5.
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Mandatory. (i) If at any time the aggregate Revolving Credit Exposure shall be in excess of the aggregate Revolving Credit Commitments then in effect, the Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans until paid in full with any Subsidiary remaining balance to be held by the Administrative Agent in the Collateral Account as security for the L/C Obligations solely to the extent necessary to reduce eliminate such excess; provided that the Borrower shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.8(b) unless after the prepayment in full of the Revolving Loans, the aggregate Revolving Credit Exposure continues to exceed the aggregate Revolving Credit Commitments then in effect.
(i) If any Loan Party shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary Loan Party in respect thereof) and (y) and, promptly upon receipt by the Borrower or the Subsidiary such Loan Party of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations Term Loan in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions or Events of Loss during any fiscal year of the Borrower not exceeding the Threshold Amount in the aggregate so long as no Event of LossDefault then exists, and (y) so long as no Event of Default then exists, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary relevant Loan Party intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of reinvest such Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful within 365 days in the Borrower business of the Loan Parties and its their Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 with such 180-365 day period, and promptly . Promptly after the end of such 180-365 day period, the Borrower shall notify the Administrative Agent whether such Loan Party has reinvested such Net Cash Proceeds in the business of the Loan Parties and their Subsidiaries, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations Term Loan in the amount of such Net Cash Proceeds not so invested or reinvested and reinvested.
(yii) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment under clause (ii) of this Section 2.8(b) shall be applied to the remaining principal installments of the Initial Term Loans first, pro rata to the remaining principal amortization payments and second, to the principal due at maturity. Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to the outstanding Term Borrowings of Base Rate Loans until paid payment in full and then thereof with any balance applied to the Line Borrowings of Credit Term SOFR Loans (without any reduction in the Line order in which their Interest Periods expire (if applicable). Each prepayment of Credit CommitmentsLoans under this Section 2.8(b) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted be made by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent payment of the estimated Net Cash Proceeds of such issuance or incurrence principal amount to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (orprepaid and, in the case of the fiscal year ending on any Term Loans or about December 31Term SOFR Loans, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first accrued interest thereon to the outstanding Term Loans until paid in full and then to date of prepayment together with any amounts due the Line of Credit Loans (Lenders under Section 4.5, but otherwise without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madepremium or penalty.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
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Mandatory. (i) If The Borrower shall, on the Borrower or Business Day following the date of receipt of any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in by any Loan Party or any of its Subsidiaries with respect to any sale, lease, transfer or other disposition of any Term Facility Collateral or any Extraordinary Receipt, prepay an amount exceeding $100,000 in any fiscal year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the aggregate principal amount of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount Advances equal to 100% of the amount of all such Net Cash Proceeds; provided, however, that (A) in the case of Net Cash Proceeds that are Extraordinary Receipts in respect of any casualty or condemnation event related to the Term Facility Collateral (x) each Disposition and Event of Loss“Extraordinary Receipts Proceeds”), if to the Borrower states in its notice extent such Extraordinary Receipts Proceeds are used to repair, restore or replace the assets that are the subject of such event that in substantially the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, same location within 180 days of after the applicable Disposition or receipt of such Extraordinary Receipts Proceeds by a Loan Party or any of its Subsidiaries, no such Extraordinary Receipts Proceeds shall be required to be applied to any prepayment hereunder; (B) with respect to any Net Cash Proceeds from an Event of Loss(that are not Extraordinary Receipts Proceeds) realized under a sale, the Net Cash Proceeds thereof in similar like-kind assets transfer or other assets used or useful in disposition, at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date 37 Chemtura (Term Loan) Credit Agreement of such sale, transfer or other disposition), and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then existsshall have occurred and be continuing, the Borrower shall not be required to make a mandatory prepayment under this Section in respect or such Subsidiary may reinvest all or any portion of such Net Cash Proceeds to in operating assets so long as within 180 days after the extent receipt of such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with Proceeds, such 180-day periodreinvestment shall have been consummated; and provided, and promptly after the end of such 180-day periodfurther, the Borrower shall promptly prepay the Obligations in the amount of such however, that any Net Cash Proceeds not so invested or reinvested by the conclusion of such reinvestment period shall on the following Business Day be applied to the prepayment of Loans as set forth in this Section 2.05(b)(i); and (yC) Net Cash in the case of Extraordinary Receipts Proceeds constituting proceeds on account of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Lossclaims subject to the Xxxxxxx Fire Settlement, no mandatory prepayment of such Net Cash Extraordinary Receipts Proceeds shall be required under this clause (i). The amount of each to be applied to any prepayment hereunder to the extent that such prepayment Extraordinary Receipts Proceeds shall be applied first used to pay or reimburse the outstanding Term Loans until paid in full Loan Parties and then to their Subsidiaries for funding the Line of Credit Loans (without any reduction settlement fund described in the Line definition of Credit Commitments) until paid “Xxxxxxx Fire Settlement” and/or for legal fees and expenses incurred in fullconnection therewith.
(ii) If after Upon the Closing Date the Borrower incurrence or issuance by any Loan Party or any Subsidiary shall issue of its Subsidiaries of any new equity securities Debt (other than (A) Specified Preferred Debt expressly permitted to be incurred or issued pursuant to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof5.02(b)), the Borrower shall promptly notify the Administrative Agent prepay an aggregate principal amount of the estimated Advances equal to 100% of all Net Cash Proceeds of received therefrom immediately upon receipt thereof by such issuance or incurrence to be received by the Borrower Loan Party or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this AgreementSubsidiary.
(iii) On or before the date that is thirty (30) days Within five Business Days after the date annual financial statements are required to be and the related certificate of a Responsible Officer of the Borrower have been delivered pursuant to Section 6.1(b5.03(c) of each fiscal year, beginning with for the fiscal year ending Fiscal Year ended on or about December 31, 20132012 and for each Fiscal Year thereafter, the Borrower shall (subject to the ECF Prepayment Conditions being satisfied in respect of such prepayment) prepay the then-outstanding Loans by an aggregate principal amount of Advances equal to (xA) the applicable Applicable ECF Percentage of Excess Cash Flow for the most recently completed fiscal year of the BorrowerFiscal Year covered by such financial statements, multiplied by minus (yB) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line 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 Loans and L/C Obligations then outstanding to Agreement, as the amount to which the Line of Credit Commitments have been so reducedcase may be.
Appears in 1 contract
Samples: Senior Secured Term Facility Credit Agreement (Chemtura CORP)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 20132011, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 20132011, for the period commencing on the first day of the first month following the Restatement Effective Closing Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
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Mandatory. (i) If the Borrower or any Subsidiary shall at of its Subsidiaries Disposes of any time property (other than any Disposition of any property permitted by Section 7.05) in a single transaction or from time to time make a Disposition or shall suffer an Event series of Loss resulting related transactions which results in the realization by such Person of Net Cash Proceeds in an amount exceeding of at least $100,000 in any fiscal year2,500,000, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the prepay an aggregate principal amount of the estimated Term Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person.
(ii) Upon any Extraordinary Receipt received by or paid to be or for the account of the Borrower or any of its Subsidiaries, and not otherwise included in clause (i) of this Section 2.04(b), the Borrower shall prepay an aggregate principal amount of the Term Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary in respect thereofSubsidiary.
(iii) and (y) promptly upon receipt by the Borrower or the Subsidiary Each prepayment of the Net Cash Proceeds Term Loans pursuant to the foregoing provisions of this Section 2.04(b) shall be applied to the principal repayment installments thereof in inverse order of maturity.
(iv) If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such Disposition time, or such Event if the Total Revolving Credit Outstandings exceed $15,000,000 on the 16th day after the date of Lossthe initial Credit Extension hereunder, the Borrower shall immediately prepay Revolving Credit Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to 100% such excess.
(v) Prepayments of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends Revolving Credit Facility made pursuant to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period2.04(b), and promptly after the end of such 180-day periodfirst, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Term Loans until paid in full and then Revolving Credit Loans, and, third, shall be used to Cash Collateralize the Line remaining L/C Obligations. Upon the drawing of any Letter of Credit Loans that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date further action by or notice to or from the Borrower or any Subsidiary shall issue any new equity securities (other than (ALoan Party) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Loans and, if necessary, prefund reimburse the L/C Obligations by Issuer or the amountRevolving Credit Lenders, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedas applicable.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time (i) make or agree to make a Disposition Disposition, including without limitation any Targeted Transactions or Designated Transaction, or (ii) shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 90 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 18090-day period, and promptly . Promptly after the end of such 18090-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 $1,000,000 not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained reinvested. Except for any prepayment resulting from any Designated Transaction, the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Bullet Loans A until paid in full, then to outstanding Term Loans A until paid in full, then to outstanding Term Loans B until paid in full and then to the Revolving Loans until paid in full and then to the Line Swing Loans, provided that (A) the Net Cash Proceeds of Credit Loans any disposition of the inventory and accounts receivable of a Targeted Transaction agreed to by the Borrower and the Administrative Agent (without any reduction the “Working Capital Proceeds”) in an amount equal to the amount included in the Line Borrowing Base (but not to exceed $487,000 in the aggregate) with respect to such assets shall first be applied to the repayment of Credit CommitmentsRevolving Loan until paid in full and then to the Swing Loans, and (B) the Borrower may elect to apply any Working Capital Proceeds in excess the amount described in the foregoing clause (A) to the repayment of Revolving Loans or the Bullet Loans A. The amount of any payment resulting from any Designated Transaction shall be applied first to the outstanding Term Loans A until paid in full, then to outstanding Term Loans B until paid in full and then to the Revolving Loans until paid in full and then to the Swing Loans until paid in full and then to the outstanding Bullet Loans A, provided that the Net Cash Proceeds of any disposition of the inventory and accounts receivable in connection with a Designated Transaction in an amount equal to the amount included in the Borrowing Base with respect to such assets shall first be applied to the repayment of Revolving Loan until paid in full and then to the Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such 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 Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur or assume any Indebtedness other than that permitted by Section 6.11 Sections 6.11(a), (b) or (c) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A LoansLoans (until paid in full, CapEx Loans and Delayed Draw then to the Term Loans pro rata B until paid in full, then to the Revolving Loans until paid in full) then to the Swing Loans until paid in full and then to the Line of Credit Bullet Loans (without any reduction in the Line of Credit Commitments) until paid in full. A. 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) On or before the date that is thirty (30) No later than 28 days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) last day of each fiscal yearquarter, beginning commencing with the fiscal year quarter ending on or about December January 31, 2013, the Borrower shall prepay the then-outstanding Term Loans A by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of amount by which the Borrower, multiplied by (y) ’s Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing October 1, 2012 and ending on the first last day of the first month following the Restatement Effective Date through the end of such fiscal year) . The quarter exceeded the amount of each such prepayment shall necessary for the Borrower’s Fixed Charge Coverage Ratio to be applied first 1.2 to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce1, by minus the amount of such voluntary prepayments, the amount required all payments previously made pursuant to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) 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 A, Term Loans B, Bullet Loans A or Swing Loans, accrued interest thereon to the date of prepayment. Each prefunding of L/C Obligations shall be made in accordance with Section 7.4.
(vi) 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 Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans until payment in full thereof with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(vii) If the Borrower receives any Tax Refunds, the Borrower shall prepay the Obligations by an amount equal to the amount of such proceeds, and, if the Administrative Agent receives any Tax Refunds, the Administrative Agent shall apply such Tax Refunds to effect such prepayment. The amount of each such prepayment shall be applied first to the outstanding Term Loans A until paid in full, then to the outstanding Term Loans B until paid in full, then to the Revolving Loans until paid in full and then to the Swing Loans until paid in full and then to the outstanding Bullet Loans A until paid in full.
Appears in 1 contract
Mandatory. (i) The Borrower shall, on each date the Commitments are reduced pursuant to Section 2.11, prepay the Revolving 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 Revolving Loans and L/C Obligations then outstanding to the amount to which the Commitments have been so reduced.
(ii) If Usage is greater than 35% and 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 Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans until paid in full with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iii) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $1,000,000 in the aggregate so long as no Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 90 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested reinvested. If the Administrative Agent or reinvested and (y) Net Cash Proceeds constituting the Required Lenders so request, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Administrative Agent (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no 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 Credit Commitments) until paid in fullreplacing, rebuilding or restoring such Property.
(iiiv) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(j) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7(a)-(e), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by Obligations in an aggregate amount equal to 100% of 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 8.7 or any other terms of the Loan Documents.
(xvi) If after the applicable ECF Percentage Closing Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the most recently completed fiscal year account of the BorrowerBorrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance, multiplied the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of 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 8.7 or any other terms of the Loan Documents.
(vii) Unless the Borrower 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 (y) Cash Flow the payment of Borrower and its Subsidiaries for such fiscal year (orthe principal amount to be prepaid and, in the case of the fiscal year ending on or about December 31any Eurodollar Loan, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first accrued interest thereon to the outstanding Term Loans until paid in full and then to date of prepayment together with any amounts due the Line Lenders under Section 4.5. Each prefunding of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedshall be made in accordance with Section 9.4.
Appears in 1 contract
Samples: Credit Agreement (Shimmick Corp)
Mandatory. (i) If the Borrower or any Subsidiary Guarantor shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary Guarantor in respect thereof) and (y) and, promptly upon receipt by the Borrower or the Subsidiary such Guarantor of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary relevant Guarantor intends to invest or reinvest, as applicable, within 180 120 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 180120-day period, and promptly . Promptly after the end of such 180120-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Guarantor has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied applied, first to the outstanding Term Loans until paid in full and then to the Line Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary Guarantor shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock optionsoptions or pursuant to an employee stock incentive plan, and (DB) equity securities capital stock of the Parent the Net Cash Proceeds of which are used in whole or in part to finance a Permitted Acquisition, (C) capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted a Permitted Acquisition, (D) capital stock of the Parent the Net Cash Proceeds of which are used to finance redemptions of equity interests owned by managers of the terms hereof, if any) Borrower or incur any Indebtedness other than that a Guarantor upon termination of employment to the extent permitted by Section 6.11 8.12(c) hereof, (E) capital stock of the Parent the Net Cash Proceeds of which are used to finance Capital Expenditures and (F) equity securities issued in connection with the exercise of a Cure Right, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 50% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied applied, first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullRevolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Guarantor shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such Guarantor in respect thereof. Promptly upon receipt by the Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied applied, first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction Revolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Line Lenders for any breach of Credit Commitment) until paid in full. Any voluntary prepayments of principal Section 8.7 hereof or any other terms of the Term Loans made during Loan Documents.
(iv) If after the Closing Date the Borrower or any year Guarantor shall reduceissue any Subordinated Debt, the 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 Borrower or such Guarantor in respect thereof. Promptly upon receipt by the Borrower or such Guarantor of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such voluntary prepaymentsNet Cash Proceeds. The amount of each such prepayment shall be applied, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent first to the year such voluntary prepayments were made; provided that, outstanding Term Loans until paid in full and then to the amount required to be paid under this Section 2.8(b)(iii) Revolving Credit. The Borrower acknowledges that its performance hereunder shall not in limit the rights and remedies of the Lenders for any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required to be made under this breach of Section 2.8(b)(iii) in 8.7 hereof or any year following other terms of the year immediately subsequent to the year such voluntary payments were madeLoan Documents.
(ivv) Within one hundred twenty (120) days after the end of each fiscal year of the Parent (commencing with the Parent’s fiscal year ended December 31, 2008), the Borrower shall prepay the Obligations by an amount equal to the Excess Cash Flow Prepayment Percentage of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower. The amount of each such prepayment shall be applied, first to the outstanding Term Loans until paid in full and then to the Revolving Credit.
(vi) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(vii) Unless the Borrower otherwise directs, prepayments of Loans 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, in the case of any Term Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Samples: Credit Agreement (Lecg Corp)
Mandatory. Until such time as the Outstanding Amount has been repaid in full, the Outstanding Amount shall be permanently prepaid in the amounts set forth below upon the occurrence of any of the following events:
(i) If In the event of any Debt Issuance by the Borrower or any of its Restricted Subsidiaries on or after the Closing Date, then concurrently with receipt of Net Cash Proceeds of such Debt Issuance, the Borrower shall prepay an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans equal to 100% of such Net Cash Proceeds.
(ii) If Net Cash Proceeds of Extraordinary Receipts received on or after the Closing Date by the Borrower or any of its Restricted Subsidiaries exceed during any calendar year an amount equal to $50,000,000 (the portion of such Net Cash Proceeds that exceeds $50,000,000 is herein referred to as “Excess Extraordinary Receipts”) the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of such Excess Extraordinary Receipts immediately upon receipt thereof by the Borrower or such Restricted Subsidiary; provided, however, that, for so long as no Event of Default shall have occurred and be continuing, the Borrower or a Restricted Subsidiary may reinvest such Extraordinary Receipts in assets used in the businesses of the Borrower or its Restricted Subsidiaries, and in such case any such Extraordinary Receipts that have not been reinvested within one year from the receipt thereof by the Borrower or such Restricted Subsidiary shall at be immediately applied to the prepayment of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans.
(iii) If Net Cash Proceeds received on or after the Closing Date by the Borrower or any time of its Restricted Subsidiaries from one or from time more Dispositions (other than Dispositions to time the Borrower or to a Restricted Subsidiary permitted by Section 7.05(b)(ii)) exceed during any calendar year, an aggregate amount equal to $50,000,000 (the portion of such Net Cash Proceeds that exceeds $50,000,000 is herein referred to as “Excess Disposition Net Cash Proceeds”) the Borrower shall make a an offer to the Lenders to prepay an aggregate principal amount of the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to such Excess Disposition or shall suffer an Net Cash Proceeds pursuant to Section 2.03(c) and, to the extent such offer is declined, the Borrower may retain such declined amounts, provided, however, for so long as no Event of Loss resulting in Default shall have occurred and be continuing, the Borrower or a Subsidiary may reinvest such Excess Disposition Net Cash Proceeds (other than Net Cash Proceeds in an amount exceeding $100,000 connection with the Disposition of a Refinery) in assets used in the business of the Borrower or its Subsidiaries, and in the case of any fiscal yearExcess Disposition Net Cash Proceeds that have not been reinvested within one year from the receipt thereof by the Borrower or such Subsidiary, then (x) the Borrower shall promptly notify immediately upon the Administrative Agent expiration of such proposed Disposition or Event of Loss (including one-year period, make an offer to the Lenders to prepay an aggregate principal amount of the estimated Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to such Excess Disposition Net Cash Proceeds pursuant to Section 2.03(c).
(iv) Upon a Disposition of (A) the El Paso Refinery as permitted under Section 7.05(c)(i), the Borrower shall prepay the Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, in full, and (B) the Gallup Refinery as permitted under Section 7.05(c)(ii), the Borrower shall prepay an aggregate principal amount of Term Loans and, if so provided in the Incremental Term Supplement applicable thereto, Incremental Term Loans, equal to 100% of the Net Cash Proceeds (which amount shall be in compliance with clause (B) of Section 7.05(c)(ii)) received by the Borrower or such Subsidiary Restricted Subsidiary; provided in each case, that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Permitted First Priority Refinancing Debt (or any Permitted Refinancing Indebtedness in respect thereofthereof that is secured on a pari passu basis with the Obligations) and (y) promptly upon receipt by pursuant to the Borrower or terms of the Subsidiary of documentation governing such Indebtedness with the Net Cash Proceeds of such Disposition transaction or event (such Event of LossIndebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all may apply such Net Cash ProceedsProceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and, if so provided in the Incremental Term Loan Supplement applicable thereto, Incremental Term Loans and Other Applicable Indebtedness at such time); provided, in further, that (A) the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect portion of such Net Cash Proceeds allocated to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower Other Applicable Indebtedness shall promptly prepay the Obligations in not exceed the amount of such Net Cash Proceeds not so invested or reinvested required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Lossremaining amount, no mandatory prepayment if any, of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first allocated to the outstanding Term Loans until paid and, if so provided in full and then the Incremental Term Loan Supplement applicable thereto, Incremental Term Loans in accordance with the terms hereof to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduceand, by if applicable, the Incremental Term Loans, and the amount of such voluntary prepayments, prepayment of the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Term Loans and, if necessaryapplicable, prefund the L/C Obligations by Incremental Term Loans, that would have otherwise been required pursuant to this Section 2.03(b) shall be reduced accordingly and (B) to the amountextent 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 and, if anyso provided in the Incremental Term Loan Supplement applicable thereto, necessary to reduce Incremental Term Loans in accordance with the sum of the aggregate principal amount of Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedterms hereof.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Western Refining, Inc.)
Mandatory. (i) If On any date that the sum of the Revolving Loan plus the Letter of Credit Exposure plus the Swing Line Loan exceeds the Total Commitment then in effect, the Borrower or any Subsidiary shall at any time or from time shall, within one (1) Business Day, to time make a Disposition or shall suffer an Event the extent of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearsuch excess, then (x) the Borrower shall promptly notify first prepay to the Administrative Agent for the benefit of such proposed Disposition or Event the Swing Line Lender (and the other Lenders, as applicable) the outstanding principal amount of Loss (including the Swing Line Advances, second prepay to the Administrative Agent for the benefit of the Lenders on a pro rata basis the outstanding principal amount of the Revolving Advances and any unpaid amounts of the Letter of Credit Obligations owed to the Lenders; and third make deposits into the Cash Collateral Account to provide cash collateral in the amount of such excess for the estimated Net Cash Proceeds remaining Letter of Credit Exposure.
(ii) Upon the occurrence of any Disposition or any Recovery Event in excess of $10,000,000.00 (except (i) to the extent that a Reinvestment Notice shall be received by the Borrower or such Subsidiary delivered in respect thereofof such Disposition or Recovery Event, (ii) Dispositions described in clauses (a) through (h) and (yj) promptly upon and (k) of Section 6.8 or (iii) with respect to cash receipts in the ordinary course of business of the applicable recipient), then on the date of receipt by the Borrower or the applicable Restricted Subsidiary (other than Global Holdings and its Subsidiaries) of the Net Cash Proceeds of such Disposition or such Event of Lossrelated thereto, the Borrower Advances shall prepay the Obligations in immediately be prepaid by an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained Proceeds; provided that, notwithstanding the Borrower or applicable Subsidiary following an Event of Lossforegoing, no mandatory prepayment of such Net Cash Proceeds on each Reinvestment Prepayment Date the Advances shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of prepaid by an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event. For purposes of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of calculating the Net Cash Proceeds received from a Disposition or from a Recovery Event, such proceeds shall be determined as of the incurrence date of the applicable Disposition or Recovery Event, whether or not received on such date, but no such amount shall be required to be applied to prepayment of the Advances pursuant to this Section until received by the applicable Person. The provisions of this Section do not constitute a consent to the consummation of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges that its performance hereunder shall Disposition not limit the rights and remedies of the Lenders for any breach of permitted by Section 6.11 or any other terms of this Agreement6.8.
(iii) On The Borrower agrees to make a mandatory prepayment of the Advances by an amount equal to 75% of the Debt Incurrence Proceeds that the Borrower or before any of its Restricted Subsidiaries (other than Global Holdings and its Subsidiaries) receives from each Debt Incurrence after the date that is Effective Date within thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeDebt Incurrence.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the terms herein, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 120 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 180120-day period, and promptly . Promptly after the end of such 180120-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Term B-2 Loans based on the outstanding principal amounts thereof) until paid in full and then to the Line Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C1) equity securities issued in connection with ordinary course employee benefit or compensation programs, (2) capital stock of the exercise of employee stock options, and (D) equity securities Parent issued to the seller of an Acquired Business in connection with an Acquisition a Permitted Acquisition, (3) capital stock of the Parent, the Borrower or any Subsidiary issued to employees or directors (if necessary for such director to qualify as such), (4) capital stock issued to finance Capital Expenditures permitted by hereunder or in connection with a Permitted Acquisition, or (5) capital stock of the terms hereof, if anyParent issued to Xxxxx Xxxxxxx or the other then existing shareholders no more than two (2) or incur any Indebtedness other than that permitted by Section 6.11 hereofoccasions per fiscal year of the Borrower, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, CapEx Term B-1 Loans, and Term B-2 Loans and Delayed Draw Term Loans pro rata based on the outstanding principal amounts thereof) until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullRevolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(d) or (f) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 thenObligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Term B-2 Loans based on the outstanding principal amounts thereof) until paid in full and then to the Revolving Credit. 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.
(iv) If after the Closing Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the 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 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 an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Term B-2 Loans based on the outstanding principal amounts thereof) until paid in full and then to the Revolving Credit. 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.
(v) Within 30 days after receipt of the Parent’s year-outstanding Loans end audited financial statements, and in any event within 120 days after the end of each fiscal year of the Parent (commencing with fiscal year ending December 31, 2007), the Borrower shall prepay the Obligations by an amount equal to (x) the applicable ECF Excess Cash Flow Prepayment Percentage of Excess Cash Flow of Parent and its Subsidiaries for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) Parent. The amount of each such prepayment shall be applied applied, subject to Section 1.9(b)(vi) below, first to the outstanding Term Loans (to be applied on a ratable basis between the outstanding Term A Loans, Term B-1 Loans, and Term B-2 Loans based on the outstanding principal amounts thereof) until paid in full and then to the Line Revolving Credit.
(vi) Notwithstanding anything to the contrary contained in this Section 1.9(b) or elsewhere in this Agreement, any Lender with an outstanding Term B Loan shall have the option to waive any mandatory prepayment of Credit Loans such Term B Loan pursuant to clauses (without reduction i)-(v), both inclusive, of this Section 1.9(b) (each such prepayment a “Waiveable Mandatory Term B Loan Prepayment”) upon the terms and provisions set forth in this Section. In the event any such Lender desires to waive such Lender’s right to receive any such Waiveable Mandatory Term B Loan Prepayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the date on which such prepayment is to occur, which notice shall also include the amount such Lender desires to receive in respect of such prepayment. If any such Lender does not provide such notice, it will be deemed to have accepted 100% of the Line total amount. In the event that any such Lender waives all or any part of Credit Commitment) until paid such right to receive any such Waiveable Mandatory Term B Loan Prepayment, the Administrative Agent shall apply 100% of the amount so waived by such Lender to the Term A Loans then outstanding in full. Any voluntary prepayments accordance with the relevant clause of principal this Section 1.9(b), provided that no such waiver request shall be honored following the prepayment in full of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeA Loans.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: First Lien Credit Agreement (Excelligence Learning Corp)
Mandatory. Without limiting anything contained herein, the Borrower agrees to the following:
(i) If the Borrower or any Subsidiary shall if at any time any Loan remains outstanding for five (5) or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal yearmore Business Days after such Loan was advanced by the Lenders, then (x) the Borrower shall promptly notify immediately and without notice or demand pay over the amount of such Loan to the Administrative Agent for the account of the Lenders as and for a mandatory prepayment on such proposed Disposition Obligations;
(ii) if at any time the sum of the principal amount of the NSCC Margin Loans then outstanding shall be in excess of the Borrowing Base (NSCC Margin) as then determined and computed, the Borrower shall immediately and without notice or Event of Loss (including demand pay over the amount of the estimated Net Cash Proceeds excess to be received by the Borrower Administrative Agent as and for a mandatory prepayment on such Obligations;
(iii) without notice or demand, prepay any NSCC Margin Loan in full on the date upon which the NSCC Margin Deposits funded from the proceeds of such Subsidiary in respect thereofNSCC Margin Loan are returned to the Borrower;
(iv) and (y) promptly upon receipt by if at any time the Borrower or the Subsidiary sum of the Net Cash Proceeds principal amount of such Disposition or such Event the Reserve Loans then outstanding shall be in excess of Lossthe Borrowing Base (Reserve) as then determined and computed, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of immediately and without notice or demand pay over the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition excess to the Administrative Agent as and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make for a mandatory prepayment under this Section in respect of on such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.Obligations;
(iiv) If after without notice or demand, prepay any Reserve Loan on the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent next computation date of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary Reserve Account in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to the lesser of (xA) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end full amount of such fiscal yearReserve Loan and (B) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required excess cash that is permitted to be paid by withdrawn from the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent to the year such voluntary prepayments were madeReserve Account; 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.and
(ivvi) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.101.10 hereof, prepay the Line of Credit Revolving Loans andand Swing Loans, if necessary, prefund the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Revolving Loans and L/C Obligations Swing Loans then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
1.4. Section 5.1 of the Credit Agreement shall be and hereby is amended by (i) amending and restating certain defined terms set forth below and (ii) inserting new defined terms in their appropriate alphabetical order, in each case to read in in their entirety as follows:
Appears in 1 contract
Samples: Credit Agreement (StoneX Group Inc.)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 5,000,000 individually or on a cumulative basis in any fiscal yearyear of the Borrower, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations Loans in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable a Subsidiary intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in assets similar like-kind to the assets which were subject to such Disposition or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryEvent of Loss, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice such similar assets with such 180-day period, and promptly . Promptly after the end of such 180-day period, the Borrower shall notify the Administrative Agent whether the Borrower or a Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Loans (or all outstanding Loans and L/C Obligations if an Event of Default exists) in the amount of such Net Cash Proceeds not so invested or reinvested and (y) reinvested. If the Borrower has not prepaid the Loans with the Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this received as described in clause (i). The amount ) above and if the Administrative Agent or the Required Lenders so request, all proceeds of each such prepayment Disposition or Event of Loss shall be applied first to deposited with the outstanding Term Loans until paid in full Administrative Agent and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities (Indebtedness for Borrowed Money, other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that for Borrowed Money permitted by Section 6.11 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations Loans in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.7 hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required to be delivered pursuant to Closing Date the Borrower or any Subsidiary shall receive any “Employer Reversion” (as defined in Section 6.1(b4980(c)(2) of each fiscal yearthe Code), beginning the Borrower shall promptly notify the Administrative Agent of such amount. Promptly upon receipt by the Borrower or such Subsidiary of such amount, and after deduction for all income, excise and other federal, state and local taxes, penalties and interest due with respect to such Employer Reversion under the fiscal year ending on Code or about December 31, 2013any other applicable law, the Borrower shall prepay the then-outstanding Loans by in an aggregate amount equal to 100% of the net amount after such deductions.
(xiv) If after the applicable ECF Percentage Closing 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 exercise of employee stock options and capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted hereby, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be received by or for the most recently completed fiscal year account of the Borrower, multiplied Borrower or such Subsidiary in respect thereof. Promptly upon receipt by (y) the Borrower or such Subsidiary of Net Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end Proceeds of such fiscal year) . The issuance, the Borrower shall prepay the Loans in an aggregate amount equal to 75% of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeNet Cash Proceeds.
(ivv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Loans Revolving Loans, Swing Loans, and, if necessary, prefund the L/C Obligations in accordance with Section 9.4 by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(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 1.8(b) shall be made by the payment of the principal amount to be prepaid and accrued interest thereon to the date of prepayment and, in the case of any Eurodollar Loan or Swing Loan, together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Samples: Credit Agreement (CTS Corp)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of provided that (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower this subsection shall not be required require any such prepayment with respect to make a mandatory prepayment under this Section in respect of such Net Cash Proceeds to the extent received on account of an Event of Loss so long as such Net Cash Proceeds are actually invested applied to replace or reinvested as described restore the relevant Property in accordance with the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount relevant Collateral Documents within six months following receipt of such Net Cash Proceeds not so invested or reinvested Proceeds, and (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds constituting proceeds received on account of business interruption insurance maintained Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Default or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)Default then exists. The amount of each such prepayment shall be applied first to the outstanding Term Revolving Loans until paid in full and then then, to the Line extent that an Event of Credit Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans (without any reduction in of the Line of Credit Commitments) until paid in fullseveral Lenders based on the principal amounts thereof.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirementsofficers, (C) equity securities issued directors or employees of the Borrower as compensation for bona fide services provided or to be provided to the Borrower by such persons and approved by the Borrower’s Board of Directors or the Compensation Committee of the Borrower’s Board of Directors, as the case may be or in connection with the exercise of employee stock options, options and (D) equity securities capital stock of the Borrower issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofa Permitted Acquisition, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations outstanding Revolving Loans until paid in the full, in an aggregate amount equal to (x) twenty five percent (25%) 50% of the amount of such Net Cash Proceeds from and then, to the issuance extent that an Event of such new equity securities and (y) one hundred percent (100%) Default then exists, applied to cash collateralize the Letters of the Net Cash Proceeds of the incurrence of any such IndebtednessCredit. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to of the Line of Credit Loans (without any reduction in several Lenders based on the Line of Credit Commitments) until paid in fullprincipal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(h) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Revolving Loans by until paid in full in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit. The amount of each such prepayment shall be applied first to on a ratable basis among the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in fullseveral Lenders based on the principal amounts thereof. Any voluntary prepayments of principal The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Term Loans made during Lenders for any year shall reduce, by breach of Section 8.7 hereof or any other terms of the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoan Documents.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Revolving 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) The Borrower shall, promptly upon receipt of any proceeds from any repayment of the Philadelphia School Loan, prepay first the outstanding Revolving Loans until paid in full and then, to the extent that an Event of Default then exists, applied to cash collateralize the Letters of Credit, in an aggregate amount equal to 100% of the amount of such proceeds. The amount of each such prepayment shall be applied on a ratable basis among the outstanding Loans of the several Lenders based on the principal amounts thereof.
(vi) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(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 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
(vii) For the avoidance of doubt, any prepayment of Loans or any cash collateralization of Letters of Credit under this Section 1.8(b) shall not reduce the Revolving Credit Commitments.
Appears in 1 contract
Mandatory. Subject to clause (ivii) If below, if the Borrower or any Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearFiscal Year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (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 receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Asset Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided, provided that in the case of (x) each Asset Disposition and Event of Loss, if the Borrower states in its such notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorylike‑kind assets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with within such 180-day twelve (12) month period, and promptly . Promptly after the end of such 180-day twelve (12) month 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 $1,000,000 not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in full.
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 Subject to clause (vii) below, if after the Closing Restatement Effective Date the Borrower or any Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof7.1 (other than Indebtedness permitted by Section 7.1(m)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Administrative Agent or the Lenders for any breach of Section 6.11 7.1 or any other terms of this Agreement.
. -41- (iii) On Subject to clause (vii) below, on or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) April 30th of each fiscal year, beginning with the fiscal year ending on or about December 31April 30, 20132019, the Borrower shall prepay the then-outstanding then‑outstanding Loans by an amount equal to (x) 50% of Excess Cash Flow of the applicable ECF Percentage Borrower on a Consolidated basis for the most recently completed fiscal year of the BorrowerFiscal Year; provided that, multiplied by (y) no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of the two consecutive fiscal quarters of the Borrower immediately preceding the date such fiscal yearExcess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrower has delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or Event of Default has occurred and is continuing on April 30th of such year when the Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeLoans.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Second Lien Credit Agreement
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearFiscal Year, then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (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 receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Asset Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided, provided that in the case of (x) each Asset Disposition and Event of Loss, if the Borrower states in its such notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorylike‑kind assets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with within such 180-day twelve (12) month period, and promptly . Promptly after the end of such 180-day twelve (12) month 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 $1,000,000 not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans and Incremental Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Term Loans and Incremental Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full, and then to the Line Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans (without any reduction such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Restatement Effective Date the Borrower or any Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof7.1 (other than Indebtedness permitted by Section 7.1(m)), the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption 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 issuance, incurrence or incurrence assumption the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans and Incremental Term Loans, CapEx Loans and Delayed Draw Term Loans pro rata if any, until paid in full (such payments being applied to the remaining amortization payments on the Term Loans and Incremental Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full, and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullSwing Loans. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 7.1 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) April 30th of each fiscal year, beginning with the fiscal year ending on or about December 31April 30, 20132019, the Borrower shall prepay the then-outstanding then‑outstanding Loans by an amount equal to (x) 50% of Excess Cash Flow of the applicable ECF Percentage Borrower on a Consolidated basis for the most recently completed fiscal year of the BorrowerFiscal Year; provided that, multiplied by (y) no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of the two consecutive fiscal quarters of the Borrower immediately preceding the date such fiscal yearExcess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrower has delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or Event of Default has occurred and is continuing on April 30th of such year when the Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied first to the outstanding Term Loans and Incremental Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Term Loans and Incremental Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full, and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeSwing Loans.
(iv) The Borrower shall, on each date (A) the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund Swing Loans and, if necessary, in accordance with Section 4, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced, and (B) a Permitted Refinancing occurs, prepay the applicable Loans subject to such Permitted Refinancing;
(v) Notwithstanding the foregoing provisions of this Section 2.8(b), (A) any Lender may waive, by written notice to the Borrower and the Administrative Agent on or before the date on which such mandatory prepayment would otherwise be required to be made hereunder, the right to receive its amount of such mandatory prepayment of the applicable Loans being prepaid, (B) if any Lender or Lenders elect to waive the right to receive their amount of such mandatory prepayment pursuant to the foregoing clause (A), the total amount that otherwise would have been applied to mandatorily prepay such applicable Loans of such Lender or Lenders shall be applied to prepay the applicable Loans being repaid of the remaining non‑waiving Lender or Lenders holding such Loans on a pro rata basis, based on the respective principal amounts of their outstanding Loans being repaid, and (C) subject to the Intercreditor Agreement, to the extent there are any prepayment amounts remaining after the foregoing application, such amounts shall be distributed to the Second Lien Administrative Agent (or its designated sub-agent) for application to the Second Lien Term Loans as permitted by the Intercreditor Agreement, and to the extent there are any prepayment amounts remaining thereafter, such amounts may be retained by the Borrower.
(vi) Unless the Borrower 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, Incremental Term Loans, if any, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 9.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.
Appears in 1 contract
Samples: First Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. Subject to the provisions of the Intercreditor Agreement and subject to the prior payment and cash collateralization in full of the First Lien Obligations:
(i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the terms herein, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 120 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 180120-day period, and promptly . Promptly after the end of such 180120-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested reinvested. If the Administrative Agent or reinvested and (y) Net Cash Proceeds constituting the Required Lenders so request, all proceeds of business interruption insurance maintained the Borrower such Disposition or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds Loss shall be required under this clause deposited with the Administrative Agent (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full or its agent) and then to the Line of Credit Loans (without any reduction held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C1) equity securities issued in connection with ordinary course employee benefit or compensation programs, (2) capital stock of the exercise of employee stock options, and (D) equity securities Parent issued to the seller of an Acquired Business in connection with an Acquisition a Permitted Acquisition, (3) capital stock of the Parent, the Borrower or any Subsidiary issued to employees or directors (if necessary for such director to qualify as such), (4) capital stock issued to finance Capital Expenditures permitted by hereunder or in connection with a Permitted Acquisition, or (5) capital stock of the terms hereof, if anyParent issued to Xxxxx Xxxxxxx or the other then existing shareholders no more than two (2) or incur any Indebtedness other than that permitted by Section 6.11 hereofoccasions per fiscal year of the Borrower, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullProceeds. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(d) or (f) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 thenObligations in an aggregate amount equal to 100% of 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 8.7 hereof or any other terms of the Loan Documents.
(iv) If after the Closing Date the Borrower or any Subsidiary shall issue any Subordinated Debt, the 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 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 an aggregate amount equal to 100% of 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 8.7 hereof or any other terms of the Loan Documents.
(v) Within 30 days after receipt of the Parent’s year-outstanding Loans end audited financial statements, and in any event within 120 days after the end of each fiscal year of the Parent (commencing with fiscal year ending December 31, 2007), the Borrower shall prepay the Obligations by an amount equal to (x) the applicable ECF Excess Cash Flow Prepayment Percentage of Excess Cash Flow of Parent and its Subsidiaries for the most recently completed fiscal year of the BorrowerParent.
(vi) Notwithstanding anything to the contrary contained in this Section 1.9(b) or elsewhere in this Agreement, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in any Lender with an outstanding Loan shall have the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end option to waive any mandatory prepayment of such fiscal yearLoan pursuant to clauses (i)-(v), both inclusive, of this Section 1.9(b) . The amount of (each such prepayment a “Waiveable Mandatory Loan Prepayment”) upon the terms and provisions set forth in this Section. In the event any such Lender desires to waive such Lender’s right to receive any such Waiveable Mandatory Loan Prepayment in whole or in part, such Lender shall so advise the Administrative Agent no later than the date on which such prepayment is to occur, which notice shall also include the amount such Lender desires to receive in respect of such prepayment. If any such Lender does not provide such notice, it will be applied first deemed to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction have accepted 100% of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madetotal amount.
(ivvii) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced[Intentionally Omitted.]
Appears in 1 contract
Samples: Second Lien Credit Agreement (Excelligence Learning Corp)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 5,000,000 individually or on a cumulative basis in any fiscal yearyear of Holdings, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon no later than five (5) Business Days following receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100100.0% of the amount of all such Net Cash ProceedsProceeds in excess of $5,000,000 for the applicable fiscal year; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 365 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossLoss or, in 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 similar like-kind assets or other assets used or useful in the business of the Borrower and its Subsidiaries’ business Subsidiaries (other than inventorycurrent assets), then so long as no Default or Event of Default then exists, the Borrower shall not be required to 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 with within such 180365-day period (or such extension period, and promptly ). Promptly after the end of such 180365-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 applicable fiscal year not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. 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 the Line Cash Collateralize Letters of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullCredit.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) incur or incur assume any Indebtedness other than that permitted by Section 6.11 hereof7.1, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance incurrence or incurrence assumption 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 incurrence or incurrence assumption the Borrower shall prepay the Obligations in the an amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata 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 the Line Cash Collateralize Letters of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 7.1 or any other terms of this Agreement.
(iii) On or before the date that is thirty Within fifteen (3015) days after the date annual financial statements are required to be have been delivered pursuant to Section 6.1(b) of each fiscal year), beginning with the fiscal year ending on or about December 31, 20132025, the Borrower shall prepay the then-outstanding Loans Obligations by an amount equal to (x1) the applicable ECF Percentage 50.0% of Excess Cash Flow for the most recently completed fiscal year of Holdings minus the Borrowersum 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, multiplied by during such calendar year (y) and not applied to the Excess Cash Flow of Borrower and its Subsidiaries for such fiscal year prepayment under this clause (or, in the case of the fiscal year ending on or about December 31, 2013, iii) for the period commencing on prior year) or after the first day end of such calendar year and prior to the first month following prepayment date in this clause (iii), and to the Restatement Effective Date through 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 yearyear 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 Line of Credit Revolving Loans until paid in full (without a corresponding permanent reduction of the Line Revolving Credit Commitments), then to Swing Loans and then to Cash Collateralize Letters of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeCredit.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund 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 Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of 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 the 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) If the either Borrower or any Subsidiary shall at any time or from time to time make a or agree to make an Asset Disposition or shall suffer an Event of Loss resulting with respect to any Property which results in Net Cash Proceeds in an amount exceeding excess of $100,000 1,000,000 individually or on a cumulative basis in any fiscal yearFiscal Year, then (x) the Borrower Borrowers shall promptly notify the Administrative Agent of such proposed Asset Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the such Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the such Borrower or the such Subsidiary of the Net Cash Proceeds of such Asset Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $1,000,000; provided, provided that in the case of (x) each Asset Disposition and Event of Loss, if the Borrower states Borrowers state in its such notice of such event that the applicable Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 days twelve (12) months of the applicable Asset Disposition or receipt of Net Cash Proceeds from an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorylike‑kind assets, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s Borrowers’ notice with within such 180-day twelve (12) month period, and promptly . Promptly after the end of such 180-day twelve (12) month period, the Borrowers shall notify the Administrative Agent whether such Borrower or such Subsidiary has invested or reinvested such Net Cash Proceeds as described in the Borrowers’ notice, and to the extent such Net Cash Proceeds have not been so invested or reinvested, the Borrowers shall promptly prepay the Obligations in the amount of such Net Cash Proceeds in excess of $1,000,000 not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Priority Term Loans and Incremental Priority Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full full, and then to the Line Swing Loans. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans (without any reduction such Asset Disposition or Event of Loss shall be deposited with the Administrative Agent and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault exists, the Administrative Agent is authorized to disburse amounts representing such proceeds from the Collateral Account to or at the Borrowers’ direction for application to or reimbursement for the costs of replacing, rebuilding or restoring such Property.
(ii) If after the Closing Date the either Borrower or any Subsidiary shall issue any new equity securities Ownership Interests (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if anyExcluded Equity Issuances) or incur or assume any Indebtedness other than that permitted by Section 6.11 hereof7.1 (other than Indebtedness permitted by Section 7.1(m)), the Borrower Borrowers shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the account of such Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the such Borrower or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption the Borrower Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to the outstanding Priority Term A Loans and Incremental Priority Term Loans, CapEx Loans and Delayed Draw Term Loans pro rata if any, until paid in full (such payments being applied to the remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full, and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullSwing Loans. The Borrower acknowledges Borrowers acknowledge that its their performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 7.1 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) April 30th of each fiscal year, beginning with the fiscal year ending on or about December 31April 30, 20132018, the Borrower Borrowers shall prepay the then-outstanding then‑outstanding Loans by an amount equal to (x) 50% of Excess Cash Flow of the applicable ECF Percentage Borrowers on a Consolidated basis for the most recently completed fiscal year of the BorrowerFiscal Year; provided that, multiplied by (y) no Excess Cash Flow payment shall be required under this Section 2.8(b)(iii) with respect to such recently completed Fiscal Year to the extent that (A) the Consolidated Total Leverage Ratio is less than 2.50 to 1.00 as of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of the two consecutive fiscal quarters of the Borrowers immediately preceding the date such fiscal yearExcess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii), and the Borrowers have delivered to the Administrative Agent the compliance certificates required by Section 6.2(a) hereof with detailed calculations evidencing the Consolidated Total Leverage Ratio on such dates and (B) no Default or Event of Default has occurred and is continuing on April 30th of such year when the Excess Cash Flow payment would otherwise be required under this Section 2.8(b)(iii). The amount of each such prepayment shall be applied first to the outstanding Priority Term Loans and Incremental Priority Term Loans, if any, until paid in full (such payments being applied to the remaining amortization payments on the Priority Term Loans and Incremental Priority Term Loans, if any, in the inverse order of maturity), then to the outstanding Second Out Term Loans and Incremental Second Out Term Loans, if any, until paid in full (such payments being applied to the remaining payments on the Second Out Term Loans and Incremental Second Out Term Loans, if any, in the inverse order of maturity), then to the Revolving Loans until paid in full full, and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madeSwing Loans.
(iv) The Borrower Borrowers shall, on each date (A) the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit Revolving Loans and, if necessary, prefund Swing Loans and, if necessary, in accordance with Section 4, Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum of the aggregate principal amount of Line of Credit Revolving Loans, Swing Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced, and (B) a Permitted Refinancing occurs, prepay the applicable Loans subject to such Permitted Refinancing;
(v) Notwithstanding the foregoing provisions of this Section 2.8(b), (A) any Lender may waive, by written notice to Borrowers and the Administrative Agent on or before the date on which such mandatory prepayment would otherwise be required to be made hereunder, the right to receive its amount of such mandatory prepayment of the applicable Loans being prepaid, (B) if any Lender or Lenders elect to waive the right to receive their amount of such mandatory prepayment pursuant to the foregoing clause (A), the total amount that otherwise would have been applied to mandatorily prepay such applicable Loans of such Lender or Lenders shall be applied to prepay the applicable Loans being repaid of the remaining non‑waiving Lender or Lenders holding such Loans on a pro rata basis, based on the respective principal amounts of their outstanding Loans being repaid, and (C) subject to the Intercreditor Agreement, to the extent there are any prepayment amounts remaining after the foregoing application, such amounts shall be distributed to the Second Lien Administrative Agent (or its designated sub-agent) for application to the Second Lien Term Loans as permitted by the Intercreditor Agreement, and to the extent there are any prepayment amounts remaining thereafter, such amounts may be retained by the Borrowers.
(vi) Unless the Borrowers otherwise direct, 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 Priority Term Loans, Incremental Priority Term Loans, if any, Second Out Term Loans, Incremental Second Out Term Loans, if any, Swing Loans or Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 9.1. Each prefunding of L/C Obligations shall be made in accordance with Section 4.
Appears in 1 contract
Samples: First Lien Credit Agreement (Turning Point Brands, Inc.)
Mandatory. (i) The Borrower shall, on each date the Revolving Credit Commitments are reduced pursuant to Section 2.11, prepay the Revolving 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 Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Commitments have been so reduced.
(ii) If the Borrower or any Subsidiary Loan Party shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary Loan Party in respect thereof) and (y) promptly upon and, within 10 Business Days of receipt by the Borrower or the Subsidiary such Loan Party of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $2,500,000 in the aggregate so long as no Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary relevant Loan Party intends to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of Loss, reinvest the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorybusiness, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection in respect of such Net Cash Proceeds to the extent that (i) the Borrower has reinvested or committed to reinvest such Net Cash Proceeds pursuant to a legally binding agreement in assets used or useful in the business of the Loan Parties within 180 days after receipt of such Net Cash Proceeds, and (ii) such Net Cash Proceeds are actually invested reinvested in assets used or reinvested as described useful in the Borrower’s notice with such 180-day period, and promptly business of the Loan Parties within 360 days after receipt thereof. Promptly after the end of such 180360-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Loan Party has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied applied, subject to Section 2.8(b)(vi) below, first to the outstanding Term Loans until paid in full and then to the Line Revolving Facility, but without a reduction of the Revolving Credit Loans Commitments. If the Administrative Agent or the Required Lenders so request during the existence of a Default, all proceeds of such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Event of Credit Commitments) until paid in fullDefault 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.
(iiiii) If after the Closing Date the Borrower or any Subsidiary other Loan Party shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofExcluded Equity Issuances, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by or for the account of the Borrower or such Subsidiary Loan Party in respect thereof. Promptly upon Within 10 Business Days of receipt by the Borrower or such Subsidiary Loan Party of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied applied, subject to Section 2.8(b)(vi) below, first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line Revolving Facility, but without a reduction of the Revolving Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullCommitment. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.1 (Maintenance of Subsidiaries) or Section 9.1(i) (Change of Control) or any other terms of this Agreementthe Loan Documents.
(iiiiv) On or before the date that is thirty (30) days If after the date annual financial statements are required to be delivered pursuant to Closing Date the Borrower or any Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 6.1(b) 8.7 hereof, the Borrower shall promptly notify the Administrative Agent of each fiscal year, beginning with the fiscal year ending on estimated Net Cash Proceeds of such issuance. Within 10 Business Days of receipt by the Borrower or about December 31, 2013such Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the then-outstanding Loans by Obligations in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year 100% of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end amount of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied applied, subject to Section 2.8(b)(vi) below, first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (Revolving Facility, but without a reduction of the Line Revolving Credit Commitments. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Credit Commitmentthe Lenders for any breach of Section 8.7 or any other terms of the Loan Documents.
(v) Within 90 days after receipt of the Borrower’s year-end audited financial statements, and in any event within 90 days after the end of each fiscal year of the Borrower (commencing with the fiscal year of Borrower ending on December 31, 2016), the Borrower shall prepay the Obligations by an amount equal to 50% of Excess Cash Flow for the most recently completed fiscal year of the Borrower; provided that no Excess Cash Flow prepayment shall be required under this subsection for the most recently completed fiscal year of the Borrower so long as at the time of any such required prepayment (a) no Default or Event of Default has occurred and is continuing, and (b) the Total Leverage Ratio is less than 2.0 to 1.0 as of the end of the most recently completed two consecutive fiscal quarters of Borrower. The amount of each such prepayment shall be applied, subject to Section 2.8(b)(vi) below, to the outstanding Term Loans until paid in full. Any voluntary .
(vi) Unless the Borrower otherwise directs, prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii2.8(b) during 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 year immediately subsequent to the year such voluntary prepayments were made; provided that, the amount required to be paid order in which their Interest Periods expire. Each prepayment of Loans under this Section 2.8(b)(iii2.8(b) shall not in any event be reduced to less than zero, and no such voluntary prepayments shall reduce payments required made by the payment of the principal amount to be made under this Section 2.8(b)(iii) prepaid and, in the case of any year following the year immediately subsequent Eurodollar Loans, accrued interest thereon to the year such voluntary payments were made.
(iv) The Borrower shall, on each date of prepayment together with any amounts due the Line Lenders under Section 4.5. Each prefunding of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reducedshall be made in accordance with Section 9.4.
Appears in 1 contract
Samples: Credit Agreement (Envestnet, Inc.)
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; providedprovided that (x) so long as no Default or Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $500,000 in the aggregate so long as no Default or Event of Default then exists, and (z) in the case of any Disposition not covered by clause (xy) each Disposition and above, so long as no Default or Event of LossDefault then exists, if the Borrower states in its notice of such event that the Borrower or the applicable relevant Subsidiary intends to invest or reinvest, as applicable, within 180 ninety (90) days of the applicable Disposition or receipt of Net Cash Proceeds from an Event of LossDisposition, the Net Cash Proceeds thereof in assets similar like-kind to the assets or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventorywhich were subject to such Disposition, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section subsection 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 such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 Subsidiary shall issue any new equity securities (Indebtedness for Borrowed Money, other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that for Borrowed Money permitted by Section 6.11 8.7(a)-(e) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Obligations in the an aggregate amount equal to (x) twenty five percent (25%) 100% of the amount of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction Revolving Credit. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Line Lenders for any breach of Credit CommitmentSection 8.7 hereof or any other terms of the Loan Documents.
(iii) Within two (2) days after receipt of the Borrower’s year-end audited financial statements, and in any event within ninety (90) days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2008), the Borrower shall prepay the Obligations by an amount equal to fifty percent (50%) of Excess Cash Flow of Borrower and its Subsidiaries for the most recently completed fiscal year of the Borrower. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(b)(iii) during the year immediately subsequent full and then 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 madeRevolving Credit.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.13 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans (either prepayment of Term Loans or Revolving Loans, as applicable) 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, in the case of any Term Loans or Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.12 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Revolving Credit Line of Credit Commitments are is reduced pursuant to Section 2.102.11 or at any time when the unpaid principal balance of Revolving Loans and L/C Obligations outstanding exceeds the Revolving Credit Line, prepay the Line of Credit Loans Revolving 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 Line of Credit Revolving Loans and L/C Obligations then outstanding to the amount to which the Revolving Credit Line of Credit Commitments have has been so reduced.
(ii) 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 determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall within 2 Business Days’ pay over the amount of the excess to the Bank as and for a mandatory prepayment on such Obligations, with each such prepayment first to be applied to the Revolving Loans until paid in full with any remaining balance to be held by the Bank in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(iii) If the Borrower or any Domestic Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss with respect to any Property, then the Borrower shall promptly notify the Bank of such proposed Disposition or Event of Loss (including the amount of the estimated Net Cash Proceeds to be received by the Borrower or such Domestic Subsidiary in respect thereof) and, within 2 Business Days of receipt by the Borrower or such Domestic Subsidiary of the Net Cash Proceeds of such Disposition or Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided that (x) so long as no Event of Default then exists, this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of an Event of Loss so long as (A) such Net Cash Proceeds are applied to replace or restore the relevant Property in accordance with the relevant Collateral Documents or (B) the Net Cash Proceeds received from such Event of Loss are less than $25,000, (y) this subsection shall not require any such prepayment with respect to Net Cash Proceeds received on account of Dispositions during any fiscal year of the Borrower not exceeding $100,000 in the aggregate so long as no Default then exists, and (z) in the case of any Disposition not covered by clause (y) above, so long as no Default then exists, if the Borrower states in its notice of such event that the Borrower or the relevant Domestic Subsidiary intends to reinvest, within 180 days of the applicable Disposition, the Net Cash Proceeds thereof in assets similar to the assets which were subject to such Disposition, then the Borrower shall not be required to make a mandatory prepayment under this subsection in respect of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually reinvested in such similar assets with such 180-day period. Promptly after the end of such 180-day period, the Borrower shall notify the Bank whether the Borrower or such Domestic Subsidiary has reinvested such Net Cash Proceeds in such similar assets, and, to the extent such Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so reinvested. The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in full and then to the Revolving Facility, provided that proceeds from an Event of Loss relating to Eligible Inventory and Eligible Receivables then included in the Borrowing Base shall first be applied to the Revolving Facility, but without a reduction of the Revolving Credit Line. If the Bank so requests, all proceeds of such Disposition or Event of Loss shall be deposited with the Bank (or its agent) and held by it in the Collateral Account. So long as no Event of Default exists, the Bank shall 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.
(iv) If after the Effective Date the Borrower or any Domestic Subsidiary shall issue any Indebtedness, other than Indebtedness permitted by Section 8.7, the Borrower shall promptly notify the Bank of the estimated Net Cash Proceeds of such issuance to be received by or for the account of the Borrower or such Domestic Subsidiary in respect thereof. Within 2 Business Days of receipt by the Borrower or such Domestic Subsidiary of Net Cash Proceeds of such issuance, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of such Net Cash Proceeds. The amount of each such prepayment shall be applied first to the outstanding Term Loan until paid in full and then to the Revolving Facility, but without a reduction of the Revolving Credit Line. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Bank for any breach of Section 8.7 or any other terms of the Loan Documents.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 2.8(b) shall be applied first to Borrowings of U.S. 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 the Term Loan or any Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Bank under Section 4.5. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4.
Appears in 1 contract
Mandatory. (i) If the Borrower or any Subsidiary shall at any time or from time to time after the Closing Date make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 1,500,000 individually or on a cumulative basis for all such Dispositions and Events of Loss in any fiscal yearyear of the Borrower (such excess amount the “Excess Net Cash Proceeds”), then (x) the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or of such Event of Loss (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 receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Loans, and shall pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, and pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in an aggregate amount equal to 100% of the amount of all such Excess Net Cash Proceeds; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 90 days of the applicable Disposition or receipt by it of Net Cash Proceeds from an such Disposition or Event of Loss, the Net Cash Proceeds thereof in assets similar like-kind to the assets which were subject to such Disposition or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryEvent of Loss, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this Section in respect of such Excess Net Cash Proceeds to the extent such Excess Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice such similar assets with such 18090-day period, and promptly . Promptly after the end of such 18090-day period, the Borrower shall notify the Administrative Agent whether the Borrower or such Subsidiary has reinvested such Excess Net Cash Proceeds in such similar assets, and to the extent such Excess Net Cash Proceeds have not been so reinvested, the Borrower shall promptly prepay the Loans, and shall pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, and pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in the amount of such Excess Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first on a ratable basis among the relevant outstanding Obligations of the several Lenders based on the principal amounts thereof. The Borrower may elect to defer any prepayment required under this Section 1.8(b)(i) until the outstanding Term end of the applicable Interest Period of one or more Borrowings of Eurodollar Loans until paid in full and then so as to the Line of Credit Loans (without any reduction avoid incurring funding indemnity costs under Section 1.11 hereof, provided that cash in the Line amount of Credit Commitments) until paid any prepayment so deferred shall be deposited by the Borrower in fulla non-interest bearing blocked cash collateral account with the Administrative Agent during the period of such deferral.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (Ax) Specified Preferred shares of common stock of the Borrower issued in its initial public offering (including any shares issued pursuant to CIC Partners and its Controlled Investment Affiliatesan over-allotment offering), (B) equity securities issued to satisfy local licensing requirements, (Cy) equity securities issued in connection with the exercise of employee stock options, options and (Dz) equity securities capital stock issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereofa Permitted Acquisition, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence 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 or incurrence issuance, the Borrower shall prepay the Loans, and shall pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, and pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in the an aggregate amount equal to (x) twenty five percent (25%) 100% of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to Obligations of the Line of Credit Loans (without any reduction in several Lenders based on the Line of Credit Commitments) until paid in fullprincipal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 hereof or any other terms of this Agreement. The Borrower may elect to defer any prepayment required under this Section 1.8(b)(ii) until the end of the applicable Interest Period of one or more Borrowings of Eurodollar Loans so as to avoid incurring funding indemnity costs under Section 1.11 hereof, provided that cash in the amount of any prepayment so deferred shall be deposited by the Borrower in a non-interest bearing blocked cash collateral account with the Administrative Agent during the period of such deferral.
(iii) On or before the date that is thirty (30) days If after the date annual financial statements are required Closing Date the Borrower or any Subsidiary shall issue any Indebtedness for Borrowed Money, other than Indebtedness for Borrowed Money permitted by Section 8.7(a)-(h) hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance to be delivered pursuant to Section 6.1(b) received by or for the account of each fiscal year, beginning with the fiscal year ending on Borrower or about December 31, 2013such 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 then-outstanding Loans by Loans, and shall pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid (or prepay the Loans, and pay accrued interest to the date of such prepayment on the aggregate principal amount being prepaid, and prefund the L/C Obligations if required under Section 9.4 hereof), in an aggregate amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end 100% of such fiscal year) Net Cash Proceeds. The amount of each such prepayment shall be applied first to on a ratable basis among the relevant outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction Obligations of the Line several Lenders based on the principal amounts thereof. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of Credit Commitmentthe Lenders for any breach of Section 8.7 hereof or any other terms of this Agreement. The Borrower may elect to defer any prepayment required under this Section 1.8(b)(iii) until paid in full. Any voluntary prepayments of principal the end of the Term applicable Interest Period of one or more Borrowings of Eurodollar Loans made during any year shall reduceso as to avoid incurring funding indemnity costs under Section 1.11 hereof, by provided that cash in the amount of such voluntary prepayments, the amount required to any prepayment so deferred shall be paid deposited by the Borrower under this Section 2.8(b)(iii) in a non-interest bearing blocked cash collateral account with the Administrative Agent during the year immediately subsequent to the year period of 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 madedeferral.
(iv) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Revolving 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 Line of Credit Revolving Loans and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments (such term being understood to refer to the aggregate amount of such Commitments in effect at such time, whether used or unused) have been so reduced.
(v) Unless the Borrower otherwise directs, prepayments of Loans under this Section 1.8(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 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Samples: Credit Agreement (Lincoln Educational Services Corp)
Mandatory. (i) If the Borrower any Credit Party or any Subsidiary shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding excess of $100,000 250,000 individually or on a cumulative basis in any fiscal yearyear of Credit Parties, then (x) the Borrower Representative 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 the Borrower such Credit Party or such Subsidiary in respect thereof) and (y) promptly (and in any event within five (5) Business Days) upon receipt by the Borrower any Credit Party or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower Borrowers shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash ProceedsProceeds in excess of $250,000; provided, provided that in the case of (x) each Disposition and Event of Loss, if the Borrower Representative states in its notice of such event that the Borrower applicable Credit Party or the applicable Subsidiary intends to invest or reinvest, as applicable, within 180 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventoryassets, then so long as no Default or Event of Default then exists, the Borrower 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 the BorrowerBorrower Representative’s notice with such 180-day period, and promptly . Promptly after the end of such 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 and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)reinvested. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term Loans until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) until paid in fullthe Revolving Loans, Swing Loans, Reimbursement Obligations.
(ii) If after the Second Restatement Closing Date the Borrower any Credit Party or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (Ca) equity securities issued in connection with the exercise of employee stock options, and (Db) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted the exercise of the Cure Right, (c) equity securities issued by the terms hereofa Subsidiary to another Credit Party, if any(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 (other than that permitted by Section 6.11 hereof), the then in each such case Borrower Representative shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance issuance, incurrence or incurrence assumption to be received by or for the Borrower account of such Credit Party or such Subsidiary in respect thereof. Promptly (and in any event within five (5) Business Days) upon receipt by the Borrower such Credit Party or such Subsidiary of Net Cash Proceeds of such issuance issuance, incurrence or incurrence the Borrower assumption Borrowers shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such IndebtednessProceeds. The amount of each such prepayment shall be applied first to any outstanding Overadvances, then to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and (applied on a pro rata basis over the remaining principal amortization payments thereof), and, then to (in the Line of Credit Loans (order determined by Agent but without any a reduction in the Line of Revolving Credit Commitments) until paid in fullthe Revolving Loans, Swing Loans and Reimbursement Obligations. The Borrower 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) On or before the date that is thirty No later than five (305) days Business Days after the date annual earlier of (a) receipt by Agent of the audited financial statements are required to be delivered pursuant to by Section 6.1(b6.1(c) hereof and (b) the due date of each fiscal yearthe delivery of the audited financial statements required by Section 6.1(c) hereof, beginning with the fiscal year ending on or about December 31June 30, 20132017, the Borrower Borrowers shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage 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 Borrower, multiplied by Senior Leverage Ratio (y) Cash Flow determined as of Borrower and its Subsidiaries for such the last day of any applicable fiscal year (or, in by reference to the case of the fiscal year ending on or about December 31, 2013, financial statements delivered pursuant to Section 6.1(c) for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) is less than 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 applied first to the outstanding Term Loan until paid in 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 full, and, then to (in the Line of order determined by Agent but without a reduction in Revolving Credit Loans (Commitments) any Overadvances, Swing Loans, Reimbursement Obligations, without any reduction of the Line of Credit Commitment) until paid in fullcommitments. 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 the Borrower Borrowers under this Section 2.8(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) The Borrower Borrowers shall, (A) on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.10, prepay any Overadvances, the Line of Credit Loans Revolving Loans, Swing Loans, Reimbursement Obligations and, if necessary, prefund Cash Collateralize the L/C Obligations by the amount, if any, necessary to reduce the sum amount of the aggregate principal amount Revolving Credit Exposures of Line of Credit Loans and L/C Obligations all Lenders then outstanding to the amount of the Revolving Credit Commitments or the amounts to which the Line of Revolving Credit Commitments have been so reducedreduced 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), 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 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 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 7.4.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (McBc Holdings, Inc.)
Mandatory. (i) If If, after March 31, 2006, for any reason, the Borrower or any Subsidiary shall Total Outstandings at any time or from time to time make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in any fiscal year, then (x) exceed the Borrower shall promptly notify the Administrative Agent of such proposed Disposition or Event of Loss (including the amount lesser of the estimated Net Cash Proceeds to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower Borrowing Base or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of LossAggregate Commitment then in effect, the Borrower shall immediately prepay Revolving Credit Loans in an aggregate amount equal to such excess, and thereafter if there is still an excess, Cash Collateralize the L/C Obligations, and thereafter if there is still an excess, prepay the then outstanding Term Loan to the extent of such excess.
(ii) If, at any time for any reason, the aggregate outstanding principal amount of Revolving Credit Loans and L/C Obligations exceeds the lesser of, when applicable, the Revolver Borrowing Base or the Revolving Credit Commitment, the Borrower shall immediately prepay Revolving Credit Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceedsexcess; provided, in the case of (x) each Disposition and Event of Losshowever, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends to invest or reinvest, as applicable, within 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 or other assets used or useful in the Borrower and its Subsidiaries’ business other than inventory, then so long as no Default or Event of Default then exists, the Borrower shall not be required to make Cash Collateralize the L/C Obligations pursuant to this Section unless after the prepayment in full of the Revolving Credit Loans, the L/C Obligations exceed the lesser of, when applicable, the Revolver Borrowing Base or the Revolving Credit Commitment then in effect.
(iii) The Borrower shall prepay outstanding Revolving Credit Loans (and thereafter, Cash Collateralize the L/C Obligations), within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), in an amount equal to the net proceeds of Excess Cash Flow for the fiscal year covered by such financial statements; provided, however, that no such prepayment shall cause a mandatory reduction in the Revolving Credit Commitment; and provided, further, that, the total prepayment amount due and owing under this sentence shall be reduced by the amount by which (A) the Outstanding Amount of Revolving Credit Loans as of the most recent January 1 preceding the date the Section in respect 6.01(a) financial statements have been delivered, exceeds (B) the Outstanding Amount of Revolving Credit Loans as of the date of timely delivery of said financial statements, if such Net Cash Proceeds difference is positive and solely to the extent such Net Cash Proceeds are actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any it reflects a net reduction in the Line Outstanding Amount of Credit Commitments) until paid in fullRevolving Loans during such period.
(iiiv) If after In the Closing Date event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary any other Loan Party in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of any Prepayment/Reduction Event, then, immediately after such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013received, the Borrower shall prepay the then-then outstanding Loans by Term Loan in an amount equal to such Net Proceeds, and thereafter such Net Proceeds shall reduce the Revolving Credit Commitment.
(xv) the applicable ECF Percentage for the most recently completed fiscal year Unless otherwise specified herein, each mandatory prepayment of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment Loans shall be applied first to Term Loan installments in the outstanding Term Loans until paid in full inverse order of maturity, and then second, to the Line of Revolving Credit Loans (without reduction of the Line of Credit Commitment) until paid in fullLoans. Any voluntary prepayments of principal of the Term Loans Each prepayment shall be made during any year shall reduce, by together with accrued interest on the amount of such voluntary prepayments, the amount prepaid and any amounts required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced3.
Appears in 1 contract
Samples: Credit Agreement (Find SVP Inc)
Mandatory. (i) If the Borrower or any Subsidiary of its Wholly-owned Subsidiaries shall at any time or from time to time make or agree to make a Disposition or shall suffer an Event of Loss resulting in Net Cash Proceeds in an amount exceeding $100,000 in with respect to any fiscal yearProperty, then (x) the Borrower 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 the Borrower or such Subsidiary in respect thereof) and (y) and, promptly upon receipt by the Borrower or the such Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Loss, the Borrower shall prepay the Obligations in an aggregate amount equal to 100% of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of provided that this subsection shall not require any such event that the Borrower or the applicable Subsidiary intends prepayment with respect to invest or reinvest, as applicable, within 180 days of the applicable Disposition or receipt of Net Cash Proceeds from an Event received on account of Loss, Dispositions during any fiscal year of the Net Cash Proceeds thereof in similar like-kind assets or other assets used or useful Borrower not exceeding $5,000,000 in the Borrower and its Subsidiaries’ business other than inventory, then aggregate so long as no Default or Event of Default then exists, the Borrower 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 actually invested or reinvested as described in the Borrower’s notice with such 180-day period, and promptly after the end of such 180-day period, the Borrower shall promptly prepay the Obligations in the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i). The amount of each such prepayment shall be applied first to the outstanding Term Swing Loans until paid in full and then to the Line Revolving Credit. If the Administrative Agent or the Required Lenders so request, all proceeds of Credit Loans such Disposition or Event of Loss shall be deposited with the Administrative Agent (without any reduction or its agent) and held by it in the Line Collateral Account. So long as no Default or Event of Credit Commitments) until paid in fullDefault 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 shall incur any additional Subordinated Debt or the Borrower or any Wholly-owned Subsidiary shall issue any new equity securities (whether common or preferred stock or otherwise), other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee or director stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall promptly notify the Administrative Agent of the estimated Net Cash Proceeds of such incurrence or issuance or incurrence to be received by or for the account of the Borrower or such Wholly-owned Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Wholly-owned Subsidiary of Net Cash Proceeds of such issuance or incurrence issuance, the Borrower shall prepay the Obligations in apply 100% of the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the prepayment of the outstanding Term A Swing Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full full, second to the prepayment of the Revolving Loans, until paid in full, and then to the Line prefunding of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in fullall L/C Obligations. The Borrower acknowledges that its performance hereunder shall not limit the rights and remedies of the Lenders for any breach of Section 6.11 8.11 (Maintenance of Subsidiaries) or Section 9.1(j) (Change of Control) hereof or any other terms of this Agreementthe Loan Documents.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year of the Borrower, multiplied by (y) Cash Flow of Borrower and its Subsidiaries for such fiscal year (or, in the case of the fiscal year ending on or about December 31, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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) The Borrower shall, on each date the Line of Revolving Credit Commitments are reduced pursuant to Section 2.101.12 hereof, prepay the Line of Credit Loans Revolving 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 Line of Credit Loans Revolving Loans, Swing Loans, and L/C Obligations then outstanding to the amount to which the Line of Revolving Credit Commitments have been so reduced.
(iv) If at any time the sum of the unpaid principal balance of the Revolving Loans, Swing Loans, and the L/C Obligations then outstanding shall be in excess of the Borrowing Base as then determined on the basis of the most recent Borrowing Base Certificate, the Borrower shall immediately and without notice or demand 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 applied to the Revolving Loans and Swing Loans until payment in full thereof with any remaining balance to be held by the Administrative Agent in the Collateral Account as security for the Obligations owing with respect to the Letters of Credit.
(v) Prepayments of Loans under this Section 1.8(b) shall be applied first to Swing Loans, until payment in full thereof, second to all other Borrowings of Base Rate Loans until payment in full thereof, and third to Borrowings of Eurodollar Loans in the order in which their Interest Periods expire. Each prepayment of Loans under this Section 1.8(b) shall be made by the payment of the principal amount to be prepaid and, in the case of any Eurodollar Loans or Swing Loans, accrued interest thereon to the date of prepayment together with any amounts due the Lenders under Section 1.11 hereof. Each prefunding of L/C Obligations shall be made in accordance with Section 9.4 hereof.
Appears in 1 contract
Mandatory. (iA) If the Borrower or any Restricted Subsidiary shall at Disposes of any time property or from time to time make assets (other than in a Disposition of Intellectual Property not prohibited hereunder), which in the aggregate results in the realization or receipt by the Borrower or such Restricted Subsidiary of Net Cash Proceeds, the Borrower shall suffer an Event cause the Loans to be prepaid, on or prior to the date which is ten (10) Business Days after the date of Loss resulting in the realization or receipt of such Net Cash Proceeds in an amount exceeding $100,000 equal to 100% of all Net Cash Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.04(b)(i)(A) with respect to such portion of such Net Cash Proceeds that the Borrower shall have, on or prior to such date, given written notice to the Administrative Agent of its intent to reinvest in accordance with Section 2.04(b)(i)(B) (which notice may only be provided if no Event of Default has occurred and is then continuing);
(B) With respect to any Net Cash Proceeds realized or received with respect to any Disposition (other than any Disposition involving the sale of Equity Interests in any fiscal yearSubsidiary of the Borrower), then 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 an Event of Default shall have occurred and be continuing, the Borrower shall not be permitted to make any such reinvestments (other than pursuant to a legally binding commitment that the Borrower entered into at a time when no Event of Default 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 reinvested by the expiration of the relevant time periods set forth above, an amount equal to any such Net Cash Proceeds shall be applied to the prepayment of the Loans as set forth in this Section 2.04 within five (5) Business Days after the Borrower reasonably determines that such Net Cash Proceeds are no longer intended to be or cannot be so reinvested or the expiration of such time periods.
(ii) If the Borrower or any Restricted Subsidiary incurs or issues any Indebtedness not expressly permitted to be incurred or issued pursuant to Section 7.03, the Borrower shall cause Loans to be prepaid 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) If for any reason the Total Outstandings at any time exceeds the Aggregate Commitments then in effect, the Borrower shall promptly notify the Administrative Agent of such proposed Disposition prepay, or Event of Loss (including the amount of the estimated Net Cash Proceeds cause to be received by the Borrower or such Subsidiary in respect thereof) and (y) promptly upon receipt by the Borrower or the Subsidiary of the Net Cash Proceeds of such Disposition or such Event of Lossprepaid, the Borrower shall prepay the Obligations Loans in an aggregate amount equal to 100% such excess.
(iv) If any Subsidiary (other than any Restricted Subsidiary) of the amount of all such Net Cash Proceeds; provided, in the case of (x) each Disposition and Event of Loss, if the Borrower states in its notice of such event that the Borrower or the applicable Subsidiary intends Restricted Subsidiaries makes any dividend or distribution (in each case, whether in cash or Cash Equivalents) with respect to invest any Equity Interests in such Subsidiary, or reinvest, as applicable, within 180 days any other payment on account of the applicable Disposition purchase, redemption, retirement, defeasance, acquisition, cancellation or receipt termination of Net Cash Proceeds from any such Equity Interest, or on account of any return of capital to Borrower or any Restricted Subsidiary, or makes an Event of Loss, the Net Cash Proceeds thereof in similar like-kind assets advance or other assets used or useful in loan to the Borrower and its Subsidiaries’ business other than inventoryor any Restricted Subsidiary, then so long as no Default or Event of Default then exists, the Borrower shall cause Loans to be prepaid in an amount equal to 50% of such dividends, distributions and loans on or prior to the date which is five (5) Business Days after the receipt thereof; provided that any proceeds from any Excluded Distributions shall not be required to make a 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 under of Loans required to be made pursuant to this Section in respect 2.04 at least three (3) Business Days prior to the date of such Net Cash Proceeds to the extent such Net Cash Proceeds are actually invested or reinvested as described prepayment (except in the Borrower’s notice with such 180-day periodcase of prepayments to be made pursuant clause (iii) above, and which shall be made promptly after after, or concurrently with, the end delivery of such 180-day period, notice). Each such notice shall specify the Borrower shall promptly prepay the Obligations in date of such prepayment and provide a reasonably detailed calculation of the amount of such Net Cash Proceeds not so invested or reinvested and (y) Net Cash Proceeds constituting proceeds of business interruption insurance maintained the Borrower or applicable Subsidiary following an Event of Loss, no mandatory prepayment of such Net Cash Proceeds shall be required under this clause (i)prepayment. The amount of each such prepayment shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) until paid in full.
(ii) If after the Closing Date the Borrower or any Subsidiary shall issue any new equity securities (other than (A) Specified Preferred issued to CIC Partners and its Controlled Investment Affiliates, (B) equity securities issued to satisfy local licensing requirements, (C) equity securities issued in connection with the exercise of employee stock options, and (D) equity securities issued to the seller of an Acquired Business in connection with an Acquisition permitted by the terms hereof, if any) or incur any Indebtedness other than that permitted by Section 6.11 hereof, the Borrower shall Administrative Agent will promptly notify the Administrative Agent each Lender of the estimated Net Cash Proceeds of such issuance or incurrence to be received by the Borrower or such Subsidiary in respect thereof. Promptly upon receipt by the Borrower or such Subsidiary of Net Cash Proceeds of such issuance or incurrence the Borrower shall prepay the Obligations in the amount equal to (x) twenty five percent (25%) of such Net Cash Proceeds from the issuance of such new equity securities and (y) one hundred percent (100%) of the Net Cash Proceeds of the incurrence of any such Indebtedness. The amount of each such prepayment shall be applied first to the outstanding Term A Loans, CapEx Loans and Delayed Draw Term Loans pro rata until paid in full and then to the Line of Credit Loans (without any reduction in the Line of Credit Commitments) 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 6.11 or any other terms of this Agreement.
(iii) On or before the date that is thirty (30) days after the date annual financial statements are required to be delivered pursuant to Section 6.1(b) of each fiscal year, beginning with the fiscal year ending on or about December 31, 2013, the Borrower shall prepay the then-outstanding Loans by an amount equal to (x) the applicable ECF Percentage for the most recently completed fiscal year contents of the Borrower, multiplied by (y) Cash Flow ’s prepayment notice and of Borrower and its Subsidiaries for such fiscal year (or, in the case Lender’s Pro Rata Share of the fiscal year ending on or about December 31prepayment, 2013, for the period commencing on the first day of the first month following the Restatement Effective Date through the end of such fiscal year) . The amount of each such prepayment which shall be applied first to the outstanding Term Loans until paid in full and then to the Line of Credit Loans (without reduction of the Line of Credit Commitment) until paid in full. Any voluntary prepayments of principal of the Term Loans made during any year shall reduce, by the amount of such voluntary prepayments, the amount required to be paid by the Borrower under this Section 2.8(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 madepro rata across all Facilities.
(iv) The Borrower shall, on each date the Line of Credit Commitments are reduced pursuant to Section 2.10, prepay the Line of Credit 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 Line of Credit Loans and L/C Obligations then outstanding to the amount to which the Line of Credit Commitments have been so reduced.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
