Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets. (ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date. (iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds. (iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds. (v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect. (vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder. (vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower. (viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group. (ix) Upon becoming aware of a Change of Control: (A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and (B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 4 contracts
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.), Amendment Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Mandatory. (i) Subject If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.04 (excluding dispositions permitted by Section 7.04(m), (s) (to Section 2.05(b)(iithe extent the proceeds thereof are received by Borrower or a Restricted Subsidiary) belowand (t)) or (2) any Casualty Event occurs, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Borrower or such Restricted Group Subsidiary of Net Available CashProceeds in excess of $5 million, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that which is five ten (10) Business Days after the date of the realization or receipt by any member of the Borrower or such Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Proceeds an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such terminationProceeds received; provided, further, that, that if at the time that any such prepayment would be required, any the Borrower (or any member of the Restricted GroupSubsidiary) is required to offer to prepay repurchase Permitted Pari Passu Secured Refinancing Debt (or repurchase other Senior Secured any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition or Casualty Event (such Senior Permitted Pari Passu Secured Refinancing Debt (or any Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Borrower (or any Restricted Subsidiary) may apply such Net Available Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under shall be required pursuant to this Section 2.05(b)(i) with respect to such portion of such Net Proceeds that the Borrower or the relevant Restricted Subsidiary shall have reinvested or entered into a binding commitment to reinvest or otherwise determined to reinvest (as set forth in a notice from the Borrower to the Administrative Agent to be required where delivered on or prior to the amount date which is ten (10) Business Days after the date of any such prepayment would be less than receipt of the greater applicable Net Proceeds), in each case in accordance with the definition of $200,000,000 “Net Proceeds” and 3.0% of Total Assetswithin the timeframe contemplated thereby.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Loan Party or any Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment Effective Closing Date (other than, in the case of the Borrower or any Restricted Subsidiary, Indebtedness not permitted to be Incurred or issued pursuant to prohibited under Section 4.09 of Xxxxx XX7.02, other than Credit Agreement Refinancing Indebtedness), the Borrowers Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by such Borrower Loan Party or Restricted Subsidiary of such net cash proceedsNet Proceeds.
(viii) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Exposures at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that .
(iv) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then not later than ten (10) Business Days after the date on which the Borrower is required to deliver annual financial statements pursuant to Section 6.01(a) with respect to such Excess Cash Flow Period, the Borrower shall prepay the Term Loans in an amount equal to (A) the Required ECF Percentage multiplied by the amount of Excess Cash Flow for such Excess Cash Flow Period minus (B) to the extent not be required to Cash Collateralize any L/C Obligations financed with the proceeds of the incurrence of Indebtedness having a maturity of more than twelve (12) months from the date of incurrence thereof and not previously deducted pursuant to this Section 2.05(b)(vclause (B) unlessin any prior period, after giving effect the amount of any optional prepayments of principal made by the Borrower during such Excess Cash Flow Period of (1) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such prepayment in full for purposes of this clause shall be the amount of the applicable Borrower’s cash payment in respect of such prepayment) and (2) the Revolving Credit Loans and Swing Line Loans, (to the aggregate Outstanding Amount under such Class of extent Revolving Credit Commitments exceeds are permanently reduced by the aggregate Revolving Credit Commitments of amount of, and at the time of, such Class then in effectprepayments).
(viv) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share Shares (or other applicable share provided by this Agreement) of each such Class provided, that any prepayment of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in Loans with the case Net Proceeds of prepayments pursuant to Section 2.05(b)(iv), such prepayment Credit Agreement Refinancing Indebtedness shall be applied in accordance with this Section 2.05(b)(vi) solely to those each applicable Classes Class (or Classes) of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and subject to clause (2vi) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by of this Section 2.05(b). Partial prepayments of the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderpursuant to this Section 2.05(b) shall be applied to the remaining scheduled amortization installments of the Term Loans required under Section 2.07(a) (other than the repayment to be made on the Maturity Date for the Term Loans) on a pro rata basis.
(viivi) A The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans (and/or Cash Collateralization of L/C Obligations) required to be made by such Borrower pursuant to clauses (i) through (viv) of this Section 2.05(b) at least two promptly, and in no event more than three (3) Business Days prior Days, following the event giving rise to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedmandatory prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be madeprepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (i), (ii) and (iv) of this Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one (1) Business Day after prior to the proposed date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will Borrower and/or applied for any purpose not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required otherwise prohibited by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupAgreement.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 3 contracts
Samples: Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Radio Inc.), Credit Agreement (CBS Corp)
Mandatory. (i) Subject If the Company or any of its Restricted Subsidiaries (A) Disposes of any property (other than any deemed Disposition referred to in Section 2.05(b)(ii7.08(c)) belowor (B) suffers an Event of Loss, if any member of the Restricted Group makes any Asset Disposition that in each case, which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Company shall cause to be prepaid on or prior to the date that is five Business Days after the realization or prepay, immediately upon receipt thereof by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii)Person, an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining complianceProceeds which, in the aggregate with any other Net Cash Proceeds described in this Section 2.04(b)(i) that have not been used to prepay the Loans pursuant to this Section 2.04(b)(i) or reinvested pursuant to the proviso set forth below, exceeds $50,000,000; provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.04(b)(i)); provided that , at the option election of the BorrowersCompany (as notified by the Company to the Administrative Agent on or prior to the receipt of such Net Cash Proceeds), and so long as no Default shall have occurred and be continuing, the Company or such Restricted Subsidiary may reinvest all or any portion of such Net Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Available Cash Proceeds, such reinvestment shall have been consummated (as certified by the Company in writing to the Administrative Agent); and provided further, however, that any Net Cash Proceeds not so reinvested shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.04(b)(i).
(ii) Upon the incurrence or issuance by the Company or any of its Restricted Subsidiaries of any Indebtedness (other than any Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.12), the Company shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Restricted Subsidiary.
(iii) Upon an increase of the Revolving Credit Commitment or Term A-1 Loans, or both, in connection accordance with an Asset Disposition may Section 2.13 or upon the establishment of the Incremental Term Facility in accordance with Section 2.14, the Company shall immediately prepay, in full, the Outstanding Amount of all Term A-2 Loans together with all accrued but unpaid interest to the date of such prepayment.
(iv) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.04(b) (other than pursuant to clause (iii) of this Section 2.04(b)) shall be used applied, first, ratably to each of the Term Facilities and to the principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility in the business manner set forth in clause (vii) of this Section 2.04(b).
(v) Notwithstanding any of the Restricted Groupother provisions of clause (i) or (ii) of this Section 2.04(b), including so long as no Default under Section 8.01(b), Section 8.01(g) or Section 8.01(h), or Event of Default shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to make acquisitionsbe made pursuant to clause (i) or (ii) of this Section 2.04(b), investmentsthe aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $50,000,000, capital expenditures the Company may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or operational expenditures, in each case within 12 months other amounts otherwise required under clause (i) or (ii) of this Section 2.04(b) to be applied to prepay Loans exceeds $50,000,000. During such deferral period the Company may apply all or any part of such receiptaggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article V, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.04(b). Upon the occurrence of a Default under Section 8.01(b), Section 8.01(g) or Section 8.01(h), or an Event of Default during any such deferral period, the Company shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Company and such proceeds shall not be other amounts, as applicable, that are required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i2.04(b) shall be required where (without giving effect to the amount first and second sentences of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assetsthis clause (v)) but which have not previously been so applied.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(vvi) If for any reason the aggregate Outstanding Amount of Total Revolving Credit LoansOutstandings at any time exceed the Revolving Credit Facility at such time, Swing Line the Company shall immediately prepay Revolving Credit Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations .
(vii) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b)(v2.04(b), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Credit Facility required pursuant to clause (i) unlessor (ii) of this Section 2.04(b), the amount remaining, if any, after giving effect to the prepayment in full of the applicable all L/C Borrowings and Revolving Credit Loans outstanding at such time and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion Cash Collateralization of the applicable Borrower remaining L/C Obligations in full (the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date sum of such prepayment (unless otherwise agreed by the Administrative Agent); provided thatamounts, subject to the payment when due of any cash collateralization amounts owing as a result thereof pursuant to Section 3.10and remaining amount being, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amountscollectively, the “Declined ProceedsReduction Amount”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member Company for use in the ordinary course of its business. Upon the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation drawing of any Letter of such affected Net Available Credit that has been Cash is permitted under Collateralized, the applicable local law, such repatriation will funds held as Cash Collateral shall be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable without any further action by or reserved against as a result thereof) notice to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) from the Company or a Permitted Affiliate Parentany other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 3 contracts
Samples: Amendment Agreement (CSC Holdings Inc), Credit Agreement (Cablevision Systems Corp /Ny), Credit Agreement (Cablevision Systems Corp /Ny)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowIn the event, if and on each occasion, that any member Net Cash Proceeds are received by or on behalf of the Restricted Group makes Borrower or any Asset Disposition that results of its Subsidiaries in the realization or receipt by respect of any member of the Restricted Group of Net Available CashPrepayment Event, the relevant Borrowers shall cause to be prepaid on or prior to the date that is Borrower shall, within five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds are received (or, in the event case of a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”, on or before the next succeeding Business Day following the occurrence of such Prepayment Event), prepay Revolving Credit Loans in an aggregate amount equal to 100% of the amount of such Net Available Cash which may Proceeds (such mandatory prepayments to be reinvested applied as set forth below in clause (ii) below); provided that, in the case of any event described in clause (a) of the definition of the term “Prepayment Event”, so long as no Default shall have occurred and be continuing and notice of the intent to utilize the reinvestment provisions of this Section 2.05(b)(i), on proviso is provided to the Administrative Agent prior to the date such reinvestment period expires)prepayment would otherwise be required to be made, subject if the Borrower and/or any of its Subsidiaries invests (or commits to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (Ainvest) the Net Available Cash Proceeds from such Asset Disposition and event (Bor a portion thereof) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis within 365 days after taking into account such Asset Dispositions and prepayments (but ignoring receipt of such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all Proceeds in assets used or any portion of the Net Available Cash received in connection with an Asset Disposition may be used useful in the business of the Restricted GroupBorrower and its Subsidiaries, including then no prepayment shall be required pursuant to make acquisitions, investments, capital expenditures or operational expenditures, this paragraph in each case within 12 months respect of such receiptNet Cash Proceeds from such Prepayment Event (or the applicable portion of such Net Cash Proceeds, and such proceeds shall not be if applicable, with any balance required to be applied utilized to prepay the Term Loans in accordance with this provision) except to the extent not, within 12 months of any such Net Cash Proceeds therefrom that have not been so invested (or committed to be invested) by the end of such receipt, so used 365-day period (or contractually if committed to be so used (it being understood that if any portion invested within such 365-day period, have not been so invested within 18 months after the date of receipt of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)Net Cash Proceeds), then such remaining portion at which time a prepayment shall be required in an amount equal to prepay the such Net Cash Proceeds that have not been so invested.
(ii) Each prepayment of Revolving Credit Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that applied to the extent Revolving Credit Facility (without permanent reduction of the holders Commitments) in the manner set forth in clause (iv) of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date2.05(b).
(iii) If the Administrative Agent notifies the Borrower at any member of time that the Restricted Group Incurs or issues any Indebtedness after Total Outstandings at such time exceed the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXRevolving Credit Facility in effect at such time, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five then, within two Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectnotice, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed the Revolving Credit Facility then in effect; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(iii) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Outstandings exceed the Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(viiv) Each prepayment Except as otherwise provided in Section 2.16, prepayments of Term Loans the Revolving Credit Facility made pursuant to this Section 2.05(b) ), first, shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term L/C Borrowings and the Swing Line Loans, (B) appliedsecond, with respect to each such Class for which prepayments will shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid applied ratably to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term outstanding Revolving Credit Loans, subject and, third, shall be used to Section 2.05(b)(vii). Notwithstanding clause (A) hereinaboveCash Collateralize the remaining L/C Obligations in full; and, (1) in the case of prepayments of the Revolving Credit Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through (v) of this Section 2.05(b) at least two Business Days prior to ), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis remaining L/C Obligations in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable member L/C Issuer or the applicable Lenders, as applicable.
(v) Notwithstanding anything to the contrary contained in any other provision of this Section 2.05(b), to the extent any mandatory prepayment required pursuant to Section 2.05(b)(i) (without giving effect to this Section 2.05(b)(v)) is attributable to a Prepayment Event by a Foreign Subsidiary of the Restricted Group so longBorrower or an Excluded Domestic Subsidiary, but only so longno such prepayment (or a portion thereof) shall be required to be made if either (A) such prepayment (or portion thereof, as or dividend or distribution to facilitate such prepayment) shall, at the time it is required to be made, be prohibited by applicable local Requirement of Law will (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the fiduciary and statutory duties of the directors of relevant Subsidiaries), provided that the Borrower and its Subsidiaries shall make commercially reasonable efforts with respect to such Requirement of Law to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) in accordance therewith (it being understood that such efforts shall not permit repatriation require (x) any expenditure in excess of a nominal amount of funds or (y) modifications to the jurisdiction organizational or tax structure of the relevant Borrower and its Subsidiaries to permit such prepayment (each Borrower hereby agreeing or portion thereof, or dividend or distribution to use facilitate such prepayment)), or (B) a Restricted Payment or other distribution is reasonably necessary (notwithstanding the Loan Parties’ commercially reasonable efforts to cause make such mandatory prepayment without making such Restricted Payment or other distribution) in connection with such prepayment (or portion thereof) and the Borrower determines in good faith that the Borrower or any Subsidiary would incur a material liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution (outside of any taxes applicable member of to such Prepayment Event that both (x) are deducted in calculating the Net Cash Proceeds thereof and (y) would be incurred even if no such Restricted Group Payment or other distribution were made). Notwithstanding anything in the preceding sentence to promptly take all actions reasonably the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) required by the applicable local law to permit such repatriationunder Section 2.05(b)(i), and once the Borrower shall make such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and prepayment in an amount equal to the lesser of (x) the amount of such repatriated prepayment previously required to have been made without having given effect to such limitations or restrictions and (y) the amount of cash and Cash Equivalents on hand at such time, in each case, less the amount by which the Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to Proceeds from the Prepayment Event were previously used for the permanent repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and Indebtedness (B) to the extent that a Borrower has determined including any reductions in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Groupcommitments related thereto).
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 3 contracts
Samples: Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Enterprises, Inc.), Credit Agreement (Babcock & Wilcox Co)
Mandatory. The Borrower shall prepay the Loans in accordance with the following:
(i) Subject If any Loan Party or any of its Subsidiaries Disposes of any Property (including any sale or issuance by any Loan Party or any of its Subsidiaries of any of its Capital Stock (other than Disqualified Capital Stock and any sales or issuances of Capital Stock to Section 2.05(b)(iianother Loan Party)) below, if (other than any member Disposition of the Restricted Group makes any Asset Disposition that inventory permitted by Section 6.06(a)) which results in the realization or by such Person of Net Cash Proceeds in excess of $1,000,000 in the aggregate during the term of this Agreement, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds no later than two Business Days following receipt thereof by any member such Person (such prepayments to be applied as set forth in clause (iv) below); provided, however, that with respect to such Net Cash Proceeds, at the election of the Restricted Group of Net Available Cash, Borrower (as notified by the relevant Borrowers shall cause Borrower to be prepaid the Administrative Agent on or prior to the date that is five Business Days after the realization or of receipt by any member of the Restricted Group of such Net Available Cash (orProceeds), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply such Net Cash Proceeds to reinvest in the purchase of capital assets useful in the business of such Loan Party or such Subsidiary, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject each case to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures such Loan Party or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used Subsidiary within 180 days from following the end date of receipt of such 12 month period Net Cash Proceeds (the “Reinvestment End Date”))or, then if within such remaining portion shall be required 180-day period, such Loan Party or such Subsidiary enters into a binding commitment to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i))so reinvest such Net Cash Proceeds, as of within 360 days following the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds receipt of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”Net Cash Proceeds), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that if within such 180-day (or, to the extent applicable, 360-day) period after the date of receipt by such Loan Party or such Subsidiary of such Net Cash Proceeds, such Loan Party or such Subsidiary has not so used all or a portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Cash Proceeds otherwise required to be allocated to the Other Applicable Indebtedness applied as a mandatory repayment pursuant to the terms thereofthis Section 2.05(b)(i), and the remaining amount, if any, portion of such net proceeds Net Cash Proceeds shall be allocated to the Term Loans applied as a mandatory repayment in accordance with the terms hereofrequirements of this Section 2.05(b)(i) on the last day of such 180-day (or, to the prepayment extent applicable, 360-day) period.
(ii) Within two Business Days following any Extraordinary Receipt received by or paid to or for the account of any Loan Party or any of its Subsidiaries in excess of $1,000,000 in the aggregate during the term of this Agreement, 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 received therefrom by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (iv) below); provided, however, that with respect to such Extraordinary Receipts, at the election of the Term Loans and Borrower (as notified by the Borrower to the repurchase Administrative Agent on or prepayment prior to the date of Other Applicable Indebtednessreceipt of such Extraordinary Receipts), and so long as no Default or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply such Extraordinary Receipts to reinvest in the amount purchase of prepayment assets useful in the business of such Loan Party or such Subsidiary, in each case to be used in the Term Loans that would have otherwise been required pursuant business of such Loan Party or such Subsidiary within 180-days following the date of receipt of such Extraordinary Receipts (or, if within such 180-day period, such Loan Party or such Subsidiary enters into a binding commitment to this Section 2.05(b)(i) shall be reduced accordinglyso reinvest such Extraordinary Receipts, within 360 days following the date of receipt of such Extraordinary Receipts); provided, further, that if within such 180-day (or, to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaidapplicable, the declined amount shall promptly (and in any event within ten Business Days 360-day) period after the date of receipt by such rejection) Loan Party or such Subsidiary of such Extraordinary Receipts, such Loan Party or such Subsidiary has not so used all or a portion of such Extraordinary Receipts otherwise required to be applied as a mandatory repayment pursuant to prepay this sentence, the Term Loans remaining portion of such Extraordinary Receipts shall be applied as a mandatory repayment in accordance with the terms hereof; providedrequirements of this Section 2.05(b)(ii) on the last day of such 180-day (or, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contraryextent applicable, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i360-day) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Dateperiod.
(iii) If Upon the incurrence or issuance by any member Loan Party or any of the Restricted Group Incurs or issues its Subsidiaries of any Indebtedness after the 2020 Amendment Effective Date not (other than Indebtedness expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XXSection 6.01), the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date that is five no later than two Business Days after following receipt thereof by such member of the Restricted Group of Loan Party or such net cash proceedsSubsidiary (such prepayments to be applied as set forth in clauses (iv) and (v) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in shared among the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderratably.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Retrophin, Inc.), Credit Agreement (Retrophin, Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If for any member of reason the Restricted Group makes Total Revolving Outstandings at any Asset Disposition that results time exceed the Aggregate Revolving Commitment then in effect for the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness Revolving Facility at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount Borrower shall promptly (and in any event event, within ten one (1) Business Days after the date of such rejectionDay) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Swingline Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings (together with all accrued but unpaid interest thereon) and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(i) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Swingline Loans, the aggregate Outstanding Amount under such Class of Total Revolving Credit Commitments exceeds Outstandings exceed the aggregate Aggregate Revolving Credit Commitments of such Class Commitment then in effecteffect for the Revolving Facility at such time; provided that if any such excess shall result solely from a change in the applicable exchange rates relating to Alternative Currencies, then such prepayment and/or Cash Collateralization shall only be required to be made by the Borrower upon three (3) Business Days’ notice from the Administrative Agent.
(viii) Each prepayment Except as otherwise provided in Section 2.15, prepayments of Term Loans the Revolving Facility made pursuant to this Section 2.05(b) ), first, shall be (A) applied either (x) ratably to each Class the L/C Borrowings and the Swingline Loans, second, shall be applied to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of Term any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable L/C Issuer or the Revolving Lenders, as applicable.
(iii) If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Letter of Credit Sublimit then in effect, then, within three (3) Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or Cash Collateralize Letters of Credit in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Letter of Credit Sublimit then outstanding or (y) as requested by a Borrower in effect. Within the notice delivered pursuant to parameters of the applications set forth above in Section 2.05(b)(vii2.05(b), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment 2.05(b) shall be applied first to Base Rate Loans and then to Eurodollar Rate Loans in accordance with this Section 2.05(b)(vi) solely to those applicable Classes direct order of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of Interest Period maturities. All prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this under Section 2.05(b) at least two Business Days prior shall be subject to Section 3.05, but otherwise without premium or penalty, and shall be accompanied by interest on the principal amount prepaid through the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.DB1/ 88815292.10
Appears in 2 contracts
Samples: Credit Agreement (Vertex Pharmaceuticals Inc / Ma), Credit Agreement (Vertex Pharmaceuticals Inc / Ma)
Mandatory. (i) Subject to Section 2.05(b)(iiIf the Borrower or any 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) belowor (l)) or any Casualty Event occurs, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term A Loans equal to 100% of such Net Cash Proceeds (or, if the Borrower or any of its Subsidiaries has incurred Indebtedness that is permitted under Section 7.02 that is secured, on an equal and ratable basis with the Term A Loans, by a Lien on the Collateral permitted under Section 7.01, and such Indebtedness is required to be prepaid or redeemed with the net proceeds of any such Disposition or Casualty Event, then such lesser percentage of such Net Cash Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net Cash Proceeds based on the aggregate principal amount of Term A Loans and such Indebtedness then outstanding) promptly, but in an amount which is any event within five Business Days, after the lesser later of (A) the Net Available Cash from receipt thereof by such Asset Disposition Person and (B) an amount so the expiration of the 5-day period provided below (such prepayments to be applied as set forth in clause (iii) and subject to ensure clauses (iv) and (v) below); provided, however, that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 with respect to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring any such Net Available Cash Proceeds received by or paid to or for purposes the account of determining compliance)); provided that the Borrower or any of its Subsidiaries, at the option election of the BorrowersBorrower (as notified by the Borrower to the Administrative Agent not more than 5 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be assets that are used or useful in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case Borrower and its Subsidiaries so long as within 12 months after the receipt of such receipt, and Net Cash Proceeds such proceeds reinvestment shall not be required have been completed or (y) may enter into a binding commitment to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used reinvest all or contractually committed to be so used (it being understood that if any portion of such proceeds Net Cash Proceeds in such assets so long as such binding commitment is not so used entered into within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from months after the end receipt of such 12 month period (Net Cash Proceeds and within 18 months after the “Reinvestment End Date”))receipt of such Net Cash Proceeds such reinvestment shall have been completed, then such remaining portion shall be required to prepay the Loans (and, subject to the extent otherwise required by this Section 2.05(b)(i))next succeeding proviso, as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where with respect to that portion of such Net Cash Proceeds that the amount Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any such event within five Business Days after the end of the applicable reinvestment period, applied to the prepayment would be less than of the greater of $200,000,000 and 3.0% of Total AssetsTerm A Loans as set forth in this Section 2.05(b)(i).
(ii) Notwithstanding anything in this Agreement to Upon the contrary, no incurrence or issuance by the Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues its Subsidiaries of any Indebtedness after the 2020 Amendment Effective Date (x) not expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.02 or (y) that constitutes Refinancing Commitments, Refinancing Loans or Refinancing Equivalent Debt, the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount of Term A Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date that is promptly, but in any event within five Business Days Days, after receipt thereof by the Borrower or such member of the Restricted Group of Subsidiary (such net cash proceedsprepayments to be applied as set forth in clause (iii) below and subject to clause (iv) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiii) Each prepayment of Term A Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of the Term A Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis principal repayment installments thereof as elected directed by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(viiiv) A Borrower 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 notify the Administrative Agent in writing of have occurred and be continuing, if, on any mandatory date on which a prepayment of Term Loans would otherwise be required to be made by such Borrower pursuant to clauses clause (i) through or (vii) 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) at least two Business Days prior to be applied to prepay Term A Loans exceeds $1,000,000, in which case the date prepayment amount shall be such excess over $1,000,000. During such deferral period the Borrower may apply all or any part of such prepayment (unless otherwise agreed by the Administrative Agent); provided thataggregate amount to prepay Revolving Credit Loans and may, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion fulfillment of the applicable Facility 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 other conditional eventSection 8.01(f), which refinancing or other conditional event an Event of Default, during any such deferral period, the Borrower shall not be consummated or shall otherwise be delayed. Each such notice shall specify immediately prepay the date of such prepayment and provide a reasonably detailed calculation of Term A Loans in the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of all Net Cash Proceeds received by the contents of the applicable Borrower’s prepayment notice Borrower and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined other amounts, the “Declined Proceeds”) of Term Loans as applicable, that are required to be made pursuant applied to prepay Term A Loans under this Section 2.05(b)(ii2.05(b) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) without giving effect to the Administrative Agent first and the applicable Borrower no later than 5:00 p.m. one Business Day after the date second sentences of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders this clause (iv)) but which have not previously been so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerapplied.
(viiiv) Notwithstanding any other provisions of this Section 2.052.05(b), (A) to the extent that any or all of the Net Available Cash Proceeds of any Asset Disposition by a member Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.05(b)(i) (a “Foreign Disposition”) or the Net Cash Proceeds of the Restricted Group is any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant BorrowerUnited States, the portion of such Net Available Cash Proceeds so affected will not be required to be applied to repay prepay Term A Loans at the times time provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group Foreign Subsidiary so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of United States (the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law Law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash Proceeds is permitted under the applicable local lawLaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash Proceeds will be promptly (and in any event not later than five two (2) Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment 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 a the Borrower has determined in good faith that repatriation of any of or all the Net Available Cash Proceeds of any such Asset Foreign Disposition or any Foreign Casualty Event would have a material adverse tax consequences (as determined in good faith by such Borrower) consequence with respect to such Net Available CashCash Proceeds, such the Net Available Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupForeign Subsidiary.
(ixvi) Upon becoming aware of a Change of Control:If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, L/C Borrowings and Swing Line Loans and/or Cash Collateralize such L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(Avii) Prepayments of the Company Revolving Credit Facility made pursuant to clause (vi) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or a Permitted Affiliate Parentnotice to or from the Borrower) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Valvoline Inc), Credit Agreement (Ashland Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii(A) belowIf (1) any Restricted Company consummates a Prepayment Asset Sale or (2) any Casualty Event occurs, if any member of which in the Restricted Group makes any Asset Disposition that aggregate results in the realization or receipt by any member Restricted Company of Net Cash Proceeds in excess of the Restricted Group greater of Net Available Cash$20,000,000 and 15.5% of Consolidated EBITDA as of the last day of the most recently ended Test Period (the “De Minimis Proceeds Threshold”) in any Fiscal Year, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that which is five ten Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Proceeds an aggregate principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in an amount which is equal to Required Net Proceed Percentage of all Net Cash Proceeds received in excess of the lesser De Minimis Proceeds Threshold (collectively, the “Subject Proceeds”); provided, that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Subject Proceeds in accordance with Section 2.06(b)(i)(B).
(A) the Net Available Cash from such With respect to any Subject Proceeds realized or received with respect to any Prepayment Asset Disposition and (B) an amount so as Sale or any Casualty Event required to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliancebe applied in XXXX:\98106221\28\78831.0005 accordance with Section 2.06(b)(i)(A)); provided that , at the option of the BorrowersBorrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used such Subject Proceeds in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case Companies within 12 (x) 15 months following receipt of such receiptSubject Proceeds or (y) if the Borrower enters into a contract to reinvest such Subject Proceeds within such 15-month period following receipt thereof, and 21 months following receipt of such proceeds Net Cash Proceeds; provided, that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 15-month period or 21-month period, as applicable, an amount equal to any such Net Cash Proceeds shall not be required to within ten Business Days be applied to prepay the prepayment of the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by as set forth in this Section 2.05(b)(i))2.06.
(B) [Reserved].
(C) If, as of the date or such termination; provided, further, that, if at the time that any such prepayment would be requiredrequired hereunder, any the Borrower (or any member of the its Restricted Group) Subsidiaries is required to offer to prepay repay or repurchase other Senior Secured Indebtedness pursuant to the terms prepayment any First Lien Debt of the documentation governing such Indebtedness with type described in clause (b) of the net proceeds of such Asset Disposition definition thereof (such Senior Secured Indebtedness required to be so prepaid or offered to be so repurchased, “Other Applicable Indebtedness”) (or offer to repurchase such Other Applicable Indebtedness), then the Borrowers relevant Person may apply such Net Available Cash the Subject Proceeds on a pro rata basis to the prepayment of the Subject Loans and to the repurchase or repayment of the Other Applicable Indebtedness (determined on the basis of the aggregate outstanding principal amount of the Term Subject Loans and the Other Applicable Indebtedness (or accreted amount if such Other Applicable Indebtedness is issued with original issue discount) at such time); provided, further, it being understood that (1) the portion of such net proceeds the Subject Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds the Subject Proceeds that is required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, (and the remaining amount, if any, of such net proceeds the Subject Proceeds shall be allocated to the Term Subject Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness), and the amount of the prepayment of the Term Subject Loans that would have otherwise been required pursuant to this Section 2.05(b)(i2.06(b)(i) shall be reduced accordingly; provided, further, that accordingly and (2) to the extent the holders of the Other Applicable Indebtedness decline to have such indebtedness repurchased Indebtedness prepaid or prepaidrepurchased, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Subject Loans in accordance with the terms hereofhereof and any other relevant Other Applicable Indebtedness with a corresponding requirement on a pro rata basis (determined in a manner consistent with that set forth in this clause (D)); providedit being understood and agreed that if any Term Lender or holder of such Other Applicable Indebtedness declines any prepayment contemplated by clause (2) above, further, however, that no such prepayment under this Section 2.05(b)(i) the Borrower shall not be required where to subsequently offer the amount of the relevant declined prepayment to any such prepayment would be less than the greater Term Lender or any holder of $200,000,000 and 3.0% of Total AssetsOther Applicable Indebtedness.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs Company incurs or issues any Indebtedness after the 2020 Amendment Effective Date not expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrowers Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceedsNet Cash Proceeds.
(viii) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be Within ten Business Days after financial statements have been or are required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), 6.01(a) and the related Compliance Certificate has been or is required to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments delivered pursuant to Section 2.05(b)(iv6.02(a), such prepayment shall be applied in accordance commencing with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in first full Fiscal Year ending after the applicable Refinancing Amendment or notice (i.e.Closing Date, the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify cause the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Subject Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the prepaid in an aggregate principal amount of (the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent“ECF Prepayment Amount”). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (System1, Inc.), Credit and Guaranty Agreement (System1, Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Total Outstandings at any time exceeds exceed the aggregate Revolving Credit Aggregate Commitments of such Class then in effect, the relevant Borrower shall promptly immediately prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.06(b) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Total Outstandings exceed the Aggregate Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viii) Each prepayment Upon completion of Term Loans pursuant to this Section 2.05(b(i) shall be (A) applied either (x) ratably to each Class any early termination of Term Loans then outstanding any Hedge Transaction used in determining the Borrowing Base on the immediately preceding Determination Date or (yii) as requested by a Borrower the Disposition of any assets included in the notice delivered pursuant to Section 2.05(b)(vii)Borrowing Base on the immediately preceding Determination Date, to any Class the effect of which termination or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will Disposition would be made, in a manner determined at the discretion of the applicable Borrower reduction in the applicable notice Borrowing Base then in effect of 10.0% or more on a pro forma basis, the Borrowing Base shall immediately and (C) paid to automatically upon consummation of such transaction be reduced by the Appropriate Lenders in accordance with their respective Pro Rata Share (Borrowing Base contribution of such Hedge Transaction or other applicable share provided by this Agreement) assets, and all Net Cash Proceeds from the termination of each such Class Hedge Transaction or the Disposition of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment assets shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment reduce or notice (i.e., the applicable Refinanced Debt), and (2) eliminate any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderBorrowing Base Deficiency resulting from such reduction.
(viiiii) A To the extent not covered by (ii), if the Borrower or any of its Restricted 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 notify use the Administrative Agent in writing of Net Cash Proceeds to eliminate any mandatory prepayment of Term Loans required to be made by Borrowing Base Deficiency resulting from such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent)sale; provided that, subject to the payment when due proceeds of any amounts owing as a result thereof pursuant to Disposition permitted by Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in7.05(g) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined constitute Net Cash Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Company Borrower or a Permitted Affiliate Parent, as applicable, shall promptly notify Restricted Subsidiary of a kind then used or usable in the Administrative Agent; and
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 Required Lenders so requireapplicable Borrower or Restricted Subsidiary intends to acquire replacement properties or assets, or other productive properties or assets, with such proceeds as part of a like-kind exchange under Section 1031 of the Code, the Administrative Agent shallpotential replacement properties or assets are identified by such Borrower or Restricted Subsidiary within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property and the proceeds from such property are reinvested to acquire such replacement properties or assets (with equal or greater aggregate Attributed Value) within 180 days from the date the ownership to the sold assets is transferred to the buyer of such property; provided further that, the proceeds of any Casualty Event shall not constitute Net Cash Proceeds to the extent that such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by not less the Borrower or a Guarantor of a kind then used or usable in the business of the applicable Person (with equal or greater aggregate Attributed Value) within 180 days from the date of receipt thereof.
(iv) Upon the incurrence or issuance by the Borrower or any of its Restricted Subsidiaries of any Indebtedness (other than 30 Business Days’ Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Restricted Subsidiary (such prepayments to be applied as set forth in clause (v) below).
(v) Prepayments of the Total Outstandings made pursuant to this Section 2.06(b), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the CompanyBorrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payableas applicable.
Appears in 2 contracts
Samples: Credit Agreement (Sandridge Energy Inc), Credit Agreement (Sandridge Energy Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or recission) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Delayed Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement Agreement, Extension Amendment or Extension Amendment, may provide Refinancing Amendment (including on an optional basis as elected by the Borrower) for a less than ratable application that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans established thereunderwithout at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.), Extension Amendment (Liberty Latin America Ltd.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member To the extent that the Net Cash Proceeds of the Restricted Group makes any Asset Disposition that results in the realization Sale or Extraordinary Receipt exceeds $25,000,000 per Asset Sale or receipt by any member of the Restricted Group of Net Available CashExtraordinary Receipts, the relevant Borrowers Borrower shall cause deliver the notice required under Section 6.3(e) hereunder (it being agreed and understood that failure to be prepaid on deliver such notice shall not constitute a Default or prior to the date that is five Business Days after the realization or receipt by any member Event of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Default hereunder) and prepay an aggregate principal amount of Term Loans equal to 100% of such excess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as good faith intends to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring use such Net Available Cash Proceeds to acquire, improve or maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of 365th day after such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except Asset Sale to the extent notthat, within 12 months of such receipt365 day period, so the Relevant Parties have not used or contractually committed to be so used (it being understood such Net Cash Proceeds for such purpose, provided, that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion prepayment shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans 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 net cash proceeds received therefrom on or prior such prepayments to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceedsbe applied as set forth in clause (iii) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(vii) If for any reason the aggregate Outstanding Amount of Revolving Credit LoansTotal Outstandings at any time exceed the Aggregate Commitments, Swing Line the Borrower shall immediately prepay Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.4(b) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line LoansL/C Borrowings, the aggregate Outstanding Amount under such Class of Revolving Credit Total Outstandings exceed the Aggregate Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiii) Each prepayment Prepayments of Term Loans the Facility made pursuant to this Section 2.05(b2.4(b) shall be (A) applied either (x) applied, first, ratably to each Class of Term the L/C Borrowings, second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans then outstanding or (y) as requested by a Borrower in other than the notice delivered pursuant to Section 2.05(b)(viiSwingline Loans), fourth, ratably to any Class or Classes of Term the outstanding Eurodollar Rate Loans, (B) appliedand fifth, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments under Section 2.4(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through or (vii) of this Section 2.05(b) at least two Business Days prior to 2.4(b), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings and Loans outstanding at such time and, in the case of prepayments under Section 2.4(b)(ii) only, the Cash Collateralization of the applicable Facility or other conditional eventremaining L/C Obligations in full, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans Facility made pursuant to this Section 2.05(b2.4(b) to the extent provided herein and (B) to the extent that shall not result under any circumstance in a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member permanent reduction of the Restricted GroupCommitments.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PBF Logistics LP), Revolving Credit Agreement (PBF Energy Co LLC)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member To the extent that the Net Cash Proceeds of the Restricted Group makes any Asset Disposition that results in the realization Sale or Extraordinary Receipt exceeds $15,000,000 per Asset Sale or receipt by any member of the Restricted Group of Net Available CashExtraordinary Receipts, the relevant Borrowers Borrower shall cause deliver the notice required under Section 6.3(e) hereunder (it being agreed and understood that failure to be prepaid on deliver such notice shall not constitute a Default or prior to the date that is five Business Days after the realization or receipt by any member Event of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Default hereunder) and prepay an aggregate principal amount of Term Loans equal to 100% of such excess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as good faith intends to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring use such Net Available Cash Proceeds to acquire, improve or maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of 365th day after such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except Asset Sale to the extent notthat, within 12 months of such receipt365 day period, so the Relevant Parties have not used or contractually committed to be so used (it being understood such Net Cash Proceeds for such purpose, provided, that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion prepayment shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans 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 net cash proceeds received therefrom on or prior such prepayments to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceedsbe applied as set forth in clause (iii) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(vii) If for any reason the aggregate Outstanding Amount of Revolving Credit LoansTotal Outstandings at any time exceed the Aggregate Commitments, Swing Line the Borrower shall immediately prepay Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.4(b) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line LoansL/C Borrowings, the aggregate Outstanding Amount under such Class of Revolving Credit Total Outstandings exceed the Aggregate Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiii) Each prepayment Prepayments of Term Loans the Facility made pursuant to this Section 2.05(b2.4(b) shall be (A) applied either (x) applied, first, ratably to each Class of Term the L/C Borrowings, second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans then outstanding or (y) as requested by a Borrower in other than the notice delivered pursuant to Section 2.05(b)(viiSwingline Loans), fourth, ratably to any Class or Classes of Term the outstanding Eurodollar Rate Loans, (B) appliedand fifth, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments under Section 2.4(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through or (vii) of this Section 2.05(b) at least two Business Days prior to 2.4(b), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings and Loans outstanding at such time and, in the case of prepayments under Section 2.4(b)(ii) only, the Cash Collateralization of the applicable Facility or other conditional eventremaining L/C Obligations in full, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans Facility made pursuant to this Section 2.05(b2.4(b) to the extent provided herein and (B) to the extent that shall not result under any circumstance in a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member permanent reduction of the Restricted GroupCommitments.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PBF Energy Inc.), Revolving Credit Agreement (PBF Logistics LP)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowThe Borrower shall, if any member within two Business Days of the Restricted Group makes date of receipt of any Asset Disposition that results in Net Cash Proceeds by the realization Borrower, any Parent Company or receipt by any member Subsidiary of the Restricted Group of Net Available CashBorrower, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash as applicable, prepay (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), without duplication) an aggregate principal amount of Term Loans the Advances in an amount which is the lesser of equal to (A) 100% of such Net Cash Proceeds from dividends and distributions received by the Net Available Cash Borrower or any Parent Company from such Asset Disposition and any of its Affiliates or Subsidiaries, (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring 100% of such Net Available Cash for purposes of determining compliance)); provided that at Proceeds received from Asset Sales (other than Excluded Asset Sales) by the option of the Borrowers, all Borrower or any portion of its Subsidiaries and (C) 100% of such Net Cash Proceeds received by the Net Available Cash received in connection with an Asset Disposition may be used in the business Borrower, any Parent Company or any of the Restricted Groupits Subsidiaries from any incurrence, sale or issuance of Indebtedness or Equity Interests (including to make acquisitions, investments, capital expenditures or operational expenditurescontributions but, in each case within 12 months of such receiptcase, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”other than Excluded Issuances)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such mandatory prepayment shall be required under this Section 2.05(b)(i2.03(b) if and to the extent such prepayment, or the transfer of Net Cash Proceeds to the Borrower, is prohibited by or violative of the Indenture (without giving effect to any election permitted under the Indenture to make Restricted Payments other than by way of cash dividends to the Borrower), and provided further, that no prepayment shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v2.03(b)(i) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, until such time as the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments amount of such Class then in effectNet Cash Proceeds not previously applied to such prepayment exceeds $1,000,000.
(vii) Each prepayment of Term Loans pursuant to All prepayments under this Section 2.05(bsubsection (b) shall be made together with (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior accrued interest to the date of such prepayment on the principal amount prepaid, (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of B) any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind 8.04(c) and (or delay the date of C) any prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made premium payable pursuant to Section 2.05(b)(iisubsection (c) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group2.03.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Madison River Communications Corp.), Credit Agreement (Madison River Communications Corp)
Mandatory. (i) Subject If any Loan Party Disposes of any property pursuant to Section 2.05(b)(ii7.05(g) below, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term Loans in an amount which is the lesser (if any) equal to 100% of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)Proceeds promptly upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (ii) below); provided that provided, however, that, with respect to any Net Cash Proceeds described in this Section 2.05(b)(i), at the option election of the BorrowersBorrower (as notified by the Borrower to the Administrative Agent promptly following the consummation of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party may use all or any portion of the such Net Available Cash received in connection with an Asset Disposition may be used Proceeds to acquire, maintain, develop, construct, improve, upgrade or repair assets useful in the business of the Restricted Group, including Borrower and its Subsidiaries or to make acquisitionsAcquisitions permitted under Section 7.02(f), investments, capital expenditures or operational expenditures, in each case so long as within 12 months 365 days after the receipt of such receiptNet Cash Proceeds, and such proceeds use shall not be required have been consummated (as certified by the Borrower in writing to be applied to prepay the Term Loans except Administrative Agent) (provided that to the extent not, within 12 months of such receipt, so used use has not consummated on or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from before the end of such 12 month period (365-day period, if the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (Borrower certifies to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, Administrative Agent that the Loan Party has entered into a binding commitment to use all or a portion of such net proceeds allocated Net Cash Proceeds for such reinvestment, such 365-day period shall be extended to 545 days from the Other Applicable Indebtedness shall not exceed date of the amount consummation of the applicable Disposition for all or such net proceeds required to be allocated to portion, as the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if anycase may be, of such net proceeds Net Cash Proceeds); and provided further, however, that any Net Cash Proceeds not subject to such definitive agreement or so used shall be allocated to the Term Loans in accordance with the terms hereof) promptly applied to the prepayment of the Term Loans and to the repurchase or as set forth in this Section 2.05(b)(i).
(ii) Each prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that applied to the extent the holders principal repayment installments of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans on a pro-rata basis. Subject to Section 2.16, such prepayments shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End DateTerm Loan Facility.
(iii) If for any member of reason the Restricted Group Incurs or issues Total Revolving Credit Outstandings at any Indebtedness after time exceed the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAggregate Revolving Credit Commitments at such time, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five then within four Business Days after receipt by such member of notice thereof from the Restricted Group of such net cash proceeds.
(iv) If any Administrative Agent, the Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of prepay Revolving Credit Loans, Swing Line Loans and and/or L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(iii) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments exceeds at such time.
(iv) If the aggregate Outstanding Amount of all Revolving Credit Commitments Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within four Business Days after receipt of notice thereof from the Administrative Agent, the Borrower shall prepay Revolving Credit Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such Class date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(viv) Each prepayment Except as otherwise provided in Section 2.16, prepayments of Term Loans the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loansfirst, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely ratably to those applicable Classes of Term Loans selected by the applicable Borrower L/C Borrowings and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt)Swing Line Loans, and (2) any Additional Facility Joinder Agreement or Extension Amendmentsecond, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior applied ratably to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term outstanding Revolving Credit Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Cabot Microelectronics Corp), Credit Agreement (Cabot Microelectronics Corp)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after of the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(iclause (i), on the date such reinvestment period expires), subject to clause (b)(vii) of this Section 2.05(b)(vii)2.05, an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, the Borrowers may use all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(iclause (b)(i)), as of the date or such termination; provided, further, and provided further that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted GroupSubsidiary) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, and provided further that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant set out in Section 7.02 of this Agreement was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after of receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower Borrowers shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower the Borrowers shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b2.05(b)(A) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (vii) of this Section 2.05(b)(vii2.05(b). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(viclause (vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two (2) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (ii) and (iii) of this Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders Lender (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (Ai) to the extent that any of or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group Subsidiary is prohibited or delayed by applicable local Law law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group Subsidiary so long, but only so long, as the applicable local Law law will not permit repatriation to the jurisdiction of the relevant Borrower (each a Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (Bii) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupSubsidiary.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder Facility and declare all outstanding Borrowings, together with accrued interest and all other relevant amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, Facility will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Liberty Latin America Ltd.), Credit Agreement (Liberty Latin America Ltd.)
Mandatory. (i) Subject to Section 2.05(b)(iiIn the event and on such occasion that any Net Cash Proceeds are received by or on behalf of any Loan Party or any Subsidiary of a Loan Party in respect of any Reduction Event, the Borrower shall prepay Loans no later than the fifth Business Day following the occurrence of such Reduction Event (or in the case of a Reduction Event described in clause (a) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member definition of the Restricted Group of Net Available Cashterm “Reduction Event”, the relevant Borrowers shall cause to be prepaid on or prior to before the date that is five fifth Business Days after the realization or receipt by any member Day of the Restricted Group of month following the month in which such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in sale occurs) by an amount which is the lesser of equal to (A) if such Reduction Event is an event described in clause (a), (b), (c) or (e) of the definition of the term “Reduction Event”, 100% of the Net Available Cash from Proceeds received with respect to such Asset Disposition Reduction Event and (B) if such Reduction Event is an event described in clause (d) of the definition of the term “Reduction Event”, 50% of the Net Cash Proceeds received with respect to such Reduction Event (with such prepayments to be applied as set forth in Section 2.04(b)(iii) and Section 2.04(b)(iv) below), provided that any Net Cash Proceeds from an Asset Sale that is a Reduction Event shall not be applied to prepay Loans, in accordance with this Section 2.04(b)(i) until the aggregate amount of Net Cash Proceeds not yet applied in accordance with this Section 2.04(b)(i) exceeds $1,000,000, at which time all such Net Cash Proceeds shall be so applied. Notwithstanding the foregoing to the contrary:
(A) (1) if Net Cash Proceeds from an Asset Sale relating to Restaurant Businesses (including any Refranchising Asset Sale), when combined with all other such events occurring in any fiscal year of Parent and its Subsidiaries, results in aggregate Net Cash Proceeds of not more than $20,000,000 for such fiscal year, to the extent that the Borrower applies the Net Cash Proceeds from such event (or a portion thereof) within the Reinvestment Period to acquire Reinvestment Assets, then no prepayment of Loans shall be required pursuant to Section 2.04(b)(i) in respect of such amount except to the extent of any such Net Cash Proceeds therefrom that have not been so applied by the end of such Reinvestment Period, at which time a prepayment of Loans shall be required in an amount so as equal to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)Proceeds that have not been so applied (with such prepayment to be applied as set forth in Section 2.04(b)(iii) and Section 2.04(b)(iv) below); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds Parent shall not be required to be applied to prepay the Term Loans except deliver to the extent not, within 12 months Administrative Agent a certificate of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall Responsible Officer promptly (and in any event within ten no later than the fifth Business Days after Day of the date month following the month in which such Net Cash Proceeds were received) following receipt of such rejectionany Net Cash Proceeds of an Asset Sale relating to Restaurant Businesses (including any Refranchising Asset Sale) be applied to prepay the Term Loans in accordance with the terms hereof; providedfor which a prepayment of Loans, further, however, that no such prepayment under this Section 2.05(b)(i) shall may be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i2.04(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide setting forth a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Net Cash Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Dennys Corp), Credit Agreement (Dennys Corp)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If the Borrower or any member of the Restricted Group makes any Asset Disposition that results its Subsidiaries shall have received Net Cash Proceeds in the realization or receipt by any member excess of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of $50,000,000 from (A) the issuance in the capital markets by the Borrower or any of its Subsidiaries of any Debt (other than Debt of the nature described in clauses (i) and (iii) of Section 5.02(e)), or (B) the sale or issuance in the capital markets by the Borrower or any of Subsidiaries of equity interests for Net Available Cash from such Asset Disposition Proceeds, in the case of each of clauses (A) and (B) an amount so as ), to ensure that any party other than the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all Borrower or any portion of its Subsidiaries, the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion Borrower shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on make a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the mandatory prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments Advances in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Net Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied Proceeds in accordance with this Section 2.05(b)(vi) solely to those applicable Classes 2.08(b); provided, that, if the Borrower has previously made a mandatory prepayment of Term Loans selected by the applicable Borrower and specified Advances in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debtaccordance with this Section 2.08(b), no further mandatory prepayment shall be required until the amount of Net Cash Proceeds of the nature described in clauses (A) and (B) again exceed $50,000,000. Any mandatory prepayment of Advances required to be made pursuant to this Section 2.08(b) shall be made on the earlier of (1) the last day of the Interest Period for any Advance ending after the date of receipt of such Net Cash Proceeds (until all such Net Cash Proceeds have been prepaid) and (2) any Additional Facility Joinder Agreement or Extension Amendmentthe 30th calendar day after the receipt thereof and shall be applied to the Advances comprising a Borrowing ratably; provided, may provide (including on an optional basis as elected by that, all such Net Cash Proceeds shall have been applied to prepay Advances not later than the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder30th calendar day after the date that such Net Cash Proceeds exceed $50,000,000.
(viiii) A Borrower All prepayments under this subsection (b) shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior together with accrued interest to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify on the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerprepaid.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: 364 Day Term Loan Agreement (Oracle Corp /De/), 364 Day Term Loan Agreement (Oracle Corp /De/)
Mandatory. (i) Subject If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.04 (excluding dispositions permitted by Section 7.04(m), (s) (to Section 2.05(b)(iithe extent the proceeds thereof are received by Borrower or a Restricted Subsidiary) belowand (t)) or (2) any Casualty Event occurs, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Borrower or such Restricted Group Subsidiary of Net Available CashProceeds in excess of $5 million, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that which is five ten (10) Business Days after the date of the realization or receipt by any member of the Borrower or such Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Proceeds an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such terminationProceeds received; provided, further, that, that if at the time that any such prepayment would be required, any the Borrower (or any member of the Restricted GroupSubsidiary) is required to offer to prepay repurchase Permitted Pari Passu Secured Refinancing Debt (or repurchase other Senior Secured any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition or Casualty Event (such Senior Permitted Pari Passu Secured Refinancing Debt (or any Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Borrower (or any Restricted Subsidiary) may apply such Net Available Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under shall be required pursuant to this Section 2.05(b)(i) with respect to such portion of such Net Proceeds that the Borrower or the relevant Restricted Subsidiary shall have reinvested or entered into a binding commitment to reinvest or otherwise determined to reinvest (as set forth in a notice from the Borrower to the Administrative Agent to be required where delivered on or prior to the amount date which is ten (10) Business Days after the date of any such prepayment would be less than receipt of the greater applicable Net Proceeds), in each case in accordance with the definition of $200,000,000 “Net Proceeds” and 3.0% of Total Assetswithin the timeframe contemplated thereby.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Loan Party or any Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment Effective Closing Date (other than, in the case of the Borrower or any Restricted Subsidiary, Indebtedness not permitted to be Incurred or issued pursuant to prohibited under Section 4.09 of Xxxxx XX7.02, other than Credit Agreement Refinancing Indebtedness), the Borrowers Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by such Borrower Loan Party or Restricted Subsidiary of such net cash proceedsNet Proceeds.
(viii) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Exposures at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that .
(iv) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then not later than ten (10) Business Days after the date on which the Borrower is required to deliver annual financial statements pursuant to Section 6.01(a) with respect to such Excess Cash Flow Period, the Borrower shall prepay the Term Loans in an amount equal to (A) the Required ECF Percentage multiplied by the amount of Excess Cash Flow for such Excess Cash Flow Period minus (B) to the extent not be required to Cash Collateralize any L/C Obligations financed with the proceeds of the incurrence of Indebtedness having a maturity of more than twelve (12) months from the date of incurrence thereof and not previously deducted pursuant to this Section 2.05(b)(vclause (B) unlessin any prior period, after giving effect the amount of any optional prepayments of principal made by the Borrower during such Excess Cash Flow Period of (1) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such prepayment in full for purposes of this clause shall be the amount of the applicable Borrower’s cash payment in respect of such prepayment) and (2) the Revolving Credit Loans and Swing Line Loans, (to the aggregate Outstanding Amount under such Class of extent Revolving Credit Commitments exceeds are permanently reduced by the aggregate Revolving Credit Commitments of amount of, and at the time of, such Class then in effectprepayments).
(viv) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) paid to the Lendersapplied on a pro rata basis to each then outstanding Class of Term Loans and shall be further applied either (x) ratably to within each Class of Term Loans then outstanding or (y) as requested by a Borrower in to the notice delivered pursuant to Section 2.05(b)(vii), to any Lenders of such Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders Loans in accordance with their respective Pro Rata Share Shares (or other applicable share provided by this Agreement) of each such Class provided, that any prepayment of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in Loans with the case Net Proceeds of prepayments pursuant to Section 2.05(b)(iv), such prepayment Credit Agreement Refinancing Indebtedness shall be applied in accordance with this Section 2.05(b)(vi) solely to those each applicable Classes Class (or Classes) of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and subject to clause (2vi) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by of this Section 2.05(b). Partial prepayments of the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderpursuant to this Section 2.05(b) shall be applied to the remaining scheduled amortization installments of the Term Loans required under Section 2.07(a) (other than the repayment to be made on the Maturity Date for the Term Loans) on a pro rata basis.
(viivi) A The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans (and/or Cash Collateralization of L/C Obligations) required to be made by such Borrower pursuant to clauses (i) through (viv) of this Section 2.05(b) at least two promptly, and in no event more than three (3) Business Days prior Days, following the event giving rise to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedmandatory prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be madeprepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (i), (ii) and (iv) of this Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one (1) Business Day after prior to the proposed date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will Borrower and/or applied for any purpose not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required otherwise prohibited by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupAgreement.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (CBS Corp), Credit Agreement (Entercom Communications Corp)
Mandatory. (i) Subject to Section 2.05(b)(ii[Reserved].
(ii) below, if If (x) the Company or any member Restricted Subsidiary of the Restricted Group makes Company Disposes of any Asset property or assets (other than any Disposition that of any property or assets permitted by Sections 7.05 (a), (b), (c), (d), (e), (g), (h), (i), (k), (l), (m), (o), (p), (q), (s)), or (y) any Casualty Event occurs, which results in the realization or receipt by any member of the Company or Restricted Group Subsidiary of Net Available CashProceeds, the relevant Borrowers Company shall cause to be offered to be prepaid in accordance with clause (b)(ix) below, on or prior to the date that which is five ten (10) Business Days after the date of the realization or receipt by the Company or any member of the Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires)Proceeds, subject to Section 2.05(b)(vii)clause (b)(xi) below, an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance))Proceeds received; provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) Company is required to offer to prepay repurchase any Permitted First Priority Refinancing Debt (or repurchase other Senior Secured Indebtedness any Permitted Refinancing thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds Net Proceeds of such Asset Disposition or Casualty Event (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Company may apply such Net Available Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such net proceeds Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i2.05(b)(ii) shall be reduced accordingly; provided, further, that accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) [Reserved.]
(iv) If the Company or any member of the Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment Effective Closing Date (other than Indebtedness not permitted to be Incurred or issued pursuant to prohibited under Section 4.09 of Xxxxx XX7.03 (excluding Section 7.03(t)), the Borrowers Company shall cause to be offered to be prepaid in accordance with clause (b)(ix) below an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Company or such Borrower Restricted Subsidiary of such net cash proceedsNet Proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Exposures at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effecteffect (including, for the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the relevant Borrower Company shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower the Company shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the Loans such aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments then in effect. If the Administrative Agent notifies the Company at any time that the Outstanding Amount of all Revolving Credit Loans and L/C Obligations denominated in Yen at such time exceeds an amount equal to 105% of the Yen Sublimit then in effect, then, within five (5) Business Days after receipt of such Class notice, the Company shall prepay or cause to be prepaid Loans and/or Cash Collateralize Letters of Credit in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Yen Sublimit then in effect.
(vi) Each Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (yprovided that (i) as requested by a Borrower in any prepayment of Term Loans with the notice delivered pursuant Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to Section 2.05(b)(vii)each applicable Class of Refinanced Debt, to and (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans); (B) with respect to each Class of Term Loans, each prepayment pursuant to clauses (Bi) applied, with respect through (iv) of this Section 2.05(b) shall be applied to each such Class for which prepayments will be made, the scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.07(a) in a manner determined at the discretion direct order of the applicable Borrower in the applicable notice maturity; and (C) each such prepayment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) Shares of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderprepayment.
(vii) A Borrower The Company shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (viv) of this Section 2.05(b) at least two four (4) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedprepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be madeprepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable BorrowerCompany’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 2 contracts
Samples: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Total Outstandings at any time exceeds exceed the aggregate Revolving Credit Aggregate Commitments of such Class then in effect, the relevant Borrower shall promptly immediately prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.06(b) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Total Outstandings exceed the Aggregate Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viii) Each prepayment Upon completion of Term Loans pursuant to this Section 2.05(b(i) shall be (A) applied either (x) ratably to each Class any early termination of Term Loans then outstanding any Hedge Transaction used in determining the Borrowing Base on the immediately preceding Determination Date or (yii) as requested by a Borrower the Disposition of any assets included in the notice delivered pursuant to Section 2.05(b)(vii)Borrowing Base on the immediately preceding Determination Date, to any Class the effect of which termination or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will Disposition would be made, in a manner determined at the discretion of the applicable Borrower reduction in the applicable notice Borrowing Base then in effect of 7.5% or more on a pro forma basis, the Borrowing Base shall immediately and (C) paid to automatically upon consummation of such transaction be reduced by the Appropriate Lenders in accordance with their respective Pro Rata Share (Borrowing Base contribution of such Hedge Transaction or other applicable share provided by this Agreement) assets, and all Net Cash Proceeds from the termination of each such Class Hedge Transaction or the Disposition of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment assets shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment reduce or notice (i.e., the applicable Refinanced Debt), and (2) eliminate any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderBorrowing Base Deficiency resulting from such reduction.
(viiiii) A 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 notify use the Administrative Agent in writing of Net Cash Proceeds to eliminate any mandatory prepayment of Term Loans required to be made by Borrowing Base Deficiency resulting from such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent)sale; provided that, subject to the payment when due proceeds of any amounts owing as a result thereof pursuant to Disposition permitted by Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in7.05(g) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined constitute Net Cash Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) such proceeds are reinvested in replacement properties or assets, or other productive properties or assets, acquired by the Company Borrower or a Permitted Affiliate Parent, as applicable, shall promptly notify Subsidiary of a kind then used or usable in the Administrative Agent; and
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 Required Lenders so requireapplicable 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 Administrative Agent shallpotential 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 reinvested in replacement properties or assets, or other productive properties or assets, acquired by not less the Borrower or a Guarantor of a kind then used or usable in the business of the applicable Person (with equal or greater aggregate Attributed Value) within 180 days from the date of receipt thereof.
(iv) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of any Indebtedness (other than 30 Business Days’ Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.03), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the Borrower or such Subsidiary (such prepayments to be applied as set forth in clause (v) below).
(v) Prepayments of the Total Outstandings made pursuant to this Section 2.06(b), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the CompanyBorrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payableas applicable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If any member of the Restricted Group Borrowers or any Subsidiary makes any Asset Disposition that of the type described in clause (j) of Section 7.05 which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term the Loans in an amount which is the lesser equal to 100% of (A) the Net Available Cash Proceeds received therefrom in excess of $25,000,000 in the aggregate for the Net Cash Proceeds received from all such Asset Dispositions during the twelve month period most recently ended on or before such date (and including the month in which such Disposition occurred) no later than fifteen (15) days after the end of the month during which such Disposition occurred (such prepayments to be applied as set forth in clauses (ii) and (Bv) an amount so below, as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)applicable); provided that that, so long as no Event of Default exists at such time, to the option of extent a Restricted Payment or other distribution to a Borrower is required (notwithstanding the Borrowers, all Loan Parties’ commercially reasonable efforts to make such mandatory prepayment without making such Restricted Payment or any portion of the Net Available Cash received other payment) in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures such prepayment (or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)thereof), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such no prepayment would be required, any Borrower (or any member of the Restricted Groupa portion thereof) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be made if the applicable Borrower or the applicable Subsidiary determines in good faith that it would incur liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution which such Borrower, in its reasonable judgment, deems to be material. Notwithstanding anything in the preceding sentence to the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof) required where under this Section 2.05(b)(i), the Borrowers shall make such prepayment in an amount equal to the amount of any such prepayment would be previously required to have been made without having given effect to such limitations or restrictions, less than the greater amount by which the Net Cash Proceeds from the applicable Disposition were previously used for the permanent repayment of $200,000,000 and 3.0% of Total AssetsIndebtedness.
(ii) Notwithstanding anything in this Agreement Each prepayment of Term Loans pursuant to the contraryforegoing clause (i) of this Section 2.05(b) shall be applied, no Borrower will be required first, ratably between the Closing Date Term Loans and the Fourth Amendment Term Loans (and, to make or cause the extent set forth in the applicable Increase Joinder, any subsequent Incremental Term Loans) and to be made the scheduled principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility without any prepayment pursuant reduction of the Revolving Credit Commitments in the manner set forth in clause (v) of this Section 2.05(b). Subject to Section 2.05(b)(i) above if the Financial Covenant was not required to 2.17, such prepayments shall be tested for the most recent Test Period ending prior paid to the Reinvestment End DateLenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(iiic) If the Administrative Agent notifies the Company at any member of time that the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in Total Revolving Credit Outstandings at such time exceed an amount equal to 100103% of all net cash proceeds received therefrom on or prior to the date that is Revolving Credit Facility then in effect, then, within five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectnotice, the relevant Borrower Borrowers shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or the Company shall (or shall cause another Loan Party to) Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 103% of the Revolving Credit Facility then in effect; provided that such Borrower provided, however, that, subject to the provisions of Section 2.16, the Company shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(cb)(iii) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Revolving Credit Commitments exceeds Outstandings exceed 103% of the aggregate Revolving Credit Commitments of such Class Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(vid) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify If the Administrative Agent notifies the Company at any time that the portion of the Total Revolving Credit Outstandings denominated in writing Alternative Currencies at such time exceeds an amount equal to 103% of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two the Alternative Currency Sublimit then in effect, then, within five Business Days prior after receipt of such notice, the Borrowers shall prepay Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such portion of the Total Revolving Credit Outstandings as of such date of such prepayment (unless otherwise agreed by payment to an amount not to exceed 103% of the Administrative Agent)Alternative Currency Sublimit then in effect; provided provided, however, that, subject to the payment when due provisions of any amounts owing as a result thereof Section 2.16, the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 3.10, such Borrower may rescind (or delay 2.05(db)(iv) unless after the date prepayment in full of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any the Revolving Credit Loans denominated in Alternative Currencies the portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation Total Revolving Credit Outstandings denominated in Alternative Currencies exceeds 103% of the aggregate amount of such prepayment to be madeAlternative Currency Sublimit then in effect. The Administrative Agent will promptly notify each Appropriate Lender of may, at any time and from time to time after the contents of the applicable Borrower’s prepayment notice and initial deposit of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amountsCash Collateral, the “Declined Proceeds”) of Term Loans required to request that additional Cash Collateral be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by order to protect against the applicable member results of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Groupfurther exchange rate fluctuations.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowThe Commitment Amount shall, if any member of on the Restricted Group makes any Asset Disposition that results in second Business Day following the realization or receipt by the Parent or any member of its Subsidiaries of any Net Disposition Proceeds, Net Equity Proceeds, Net Issuance Proceeds or Casualty Proceeds, as the Restricted Group of Net Available Cashcase may be, the relevant Borrowers shall cause be reduced by an aggregate amount equal to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group 100% of such Net Available Cash Disposition Proceeds, 50% of such Net Equity Proceeds, 100% of such Net Issuance Proceeds or 100% of such Casualty Proceeds, as the case may be; provided, however, that, so long as a Default has not occurred and is not then continuing, the Commitment Amount shall not be reduced by
(or, in a) the event amount of Net Available Cash which may be reinvested as set forth below Disposition Proceeds received by the Parent or such Subsidiary in this Section 2.05(b)(i), on any Fiscal Year (commencing with the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A1998 Fiscal Year) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 $5,000,000 to 1.00 (on a pro forma basis after taking into account the extent such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes proceeds are applied to the acquisition or construction of determining compliance)); provided that at the option of the Borrowers, all property or any portion of the Net Available Cash received in connection with an Asset Disposition may assets to be used in the business of the Restricted GroupBorrowers and their Subsidiaries within 180 days following the receipt thereof; provided further, including to make acquisitionshowever, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds that Net Disposition Proceeds exceeding $2,500,000 from a single transaction shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as reduction of the date or such termination; provided, further, that, Commitment Amount if at (i) the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify Parent notifies the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date thirtieth day following the receipt of such Xxxxxx’s Net Disposition Proceeds of the Parent's or such Subsidiary's good faith intention to apply such Net Disposition Proceeds to such replacement, acquisition or construction (and describes in reasonable written detail such proposed application no later than the sixtieth day following the receipt of such Net Disposition Proceeds) within 360 days following the receipt of such Net Disposition Proceeds and (ii) the Parent or such Subsidiary in fact uses such Net Disposition Proceeds as specified in such notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within 360 days following the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion receipt of such Net Available Cash so affected will not be required to be Disposition Proceeds; and
(b) the amount of any Casualty Proceeds received by the Parent or such Subsidiary that are applied to repay Term Loans at the times rebuilding or replacement of the property or assets which were the source of such Casualty Proceeds within 180 days following the occurrence of such Casualty Event or such longer period as may otherwise be provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) Mortgage with respect to such Net Available Cash, property or assets. Each such Net Available Cash so affected will not reduction in the Commitment Amount shall be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Grouppermanent and automatic.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Mandatory. (i) Subject to Section 2.05(b)(iiIf the Borrower or any 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) belowor (l)) or any Casualty Event occurs, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term A Loans equal to 100% of such Net Cash Proceeds (or, if the Borrower or any of its Subsidiaries has incurred Indebtedness that is permitted under Section 7.02 that is secured, on an equal and ratable basis with the Term A Loans, by a Lien on the Collateral permitted under Section 7.01, and such Indebtedness is required to be prepaid or redeemed with the net proceeds of any such Disposition or Casualty Event, then such lesser percentage of such Net Cash Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net Cash Proceeds based on the aggregate principal amount of Term A Loans and such Indebtedness then outstanding) promptly, but in an amount which is the lesser of any event within five Business Days, after actual receipt thereof by such Person (Asuch prepayments to be applied as set forth in clause (iii) the Net Available Cash from such Asset Disposition and subject to clauses (iv) and (Bv) an amount so as below); provided, however, that with respect to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring any such Net Available Cash Proceeds actually received by or paid to or for purposes the account of determining compliance)); provided that the Borrower or any of its Subsidiaries, at the option election of the BorrowersBorrower, and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be assets that are used or useful in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case Borrower and its Subsidiaries so long as within 12 months after the actual receipt of such receipt, and Net Cash Proceeds such proceeds reinvestment shall not be required have been completed or (y) may enter into a binding commitment to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used reinvest all or contractually committed to be so used (it being understood that if any portion of such proceeds Net Cash Proceeds in such assets so long as such binding commitment is not so used entered into within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from months after the end actual receipt of such 12 month period (Net Cash Proceeds and within 18 months after the “Reinvestment End Date”))actual receipt of such Net Cash Proceeds such reinvestment shall have been completed, then such remaining portion shall be required to prepay the Loans (and, subject to the extent otherwise required by this Section 2.05(b)(i))next succeeding proviso, as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where with respect to that portion of such Net Cash Proceeds that the amount Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any such event within five Business Days after the end of the applicable reinvestment period, applied to the prepayment would be less than of the greater of $200,000,000 and 3.0% of Total AssetsTerm A Loans as set forth in this Section 2.05(b)(i).
(ii) Notwithstanding anything in this Agreement to Upon the contrary, no incurrence or issuance by the Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues its Subsidiaries of any Indebtedness after the 2020 Amendment Effective Date (x) not expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.02 or (y) that constitutes Refinancing Commitments, Refinancing Loans or Refinancing Equivalent Debt, the Borrowers Borrower [Valvoline - Credit Agreement] shall cause to be prepaid prepay an aggregate principal amount of Term A Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date that is promptly, but in any event within five Business Days Days, after actual receipt thereof by the Borrower or such member of the Restricted Group of Subsidiary (such net cash proceedsprepayments to be applied as set forth in clause (iii) below and subject to clause (iv) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiii) Each prepayment of Term A Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of the Term A Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis principal repayment installments thereof as elected directed by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(viiiv) A Borrower 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 notify the Administrative Agent in writing of have occurred and be continuing, if, on any mandatory date on which a prepayment of Term Loans would otherwise be required to be made by such Borrower pursuant to clauses clause (i) through or (vii) 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) at least two Business Days prior to be applied to prepay Term A Loans exceeds $1,000,000, in which case the date prepayment amount shall be such excess over $1,000,000. During such deferral period the Borrower may apply all or any part of such prepayment (unless otherwise agreed by the Administrative Agent); provided thataggregate amount to prepay Revolving Credit Loans and may, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind fulfillment (or delay the date of prepayment identified inwaiver in accordance with Section 10.01) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility 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 other conditional eventSection 8.01(f), which refinancing or other conditional event an Event of Default, during any such deferral period, the Borrower shall not be consummated or shall otherwise be delayed. Each such notice shall specify immediately prepay the date of such prepayment and provide a reasonably detailed calculation of Term A Loans in the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of all Net Cash Proceeds received by the contents of the applicable Borrower’s prepayment notice Borrower and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined other amounts, the “Declined Proceeds”) of Term Loans as applicable, that are required to be made pursuant applied to prepay Term A Loans under this Section 2.05(b)(ii2.05(b) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) without giving effect to the Administrative Agent first and the applicable Borrower no later than 5:00 p.m. one Business Day after the date second sentences of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders this clause (iv)) but which have not previously been so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerapplied.
(viiiv) Notwithstanding any other provisions of this Section 2.052.05(b), (A) to the extent that any or all of the Net Available Cash Proceeds of any Asset Disposition by a member Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.05(b)(i) (a “Foreign Disposition”) or the Net Cash Proceeds of the Restricted Group is any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant BorrowerUnited States, the portion of such Net Available Cash Proceeds so affected will not be required to be applied to repay prepay Term A Loans at the times time provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group Foreign Subsidiary so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of United States (the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law Law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash Proceeds is permitted under the applicable local lawLaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash Proceeds will be promptly (and in any event not later than five two (2) Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment 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 a the Borrower has determined in good faith that repatriation of any of or all the Net Available Cash Proceeds of any such Asset Foreign Disposition or any Foreign Casualty Event would have a material adverse tax consequences (as determined in good faith by such Borrower) consequence with respect to such Net Available CashCash Proceeds, such the Net Available Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupForeign Subsidiary.
(ixvi) Upon becoming aware of a Change of Control:If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, L/C Borrowings and Swing Line Loans and/or Cash Collateralize such L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(Avii) Prepayments of the Company Revolving Credit Facility made pursuant to clause (vi) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or a Permitted Affiliate Parentnotice to or from the Borrower) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Valvoline Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that that, at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period period) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 45.0 million and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date[Reserved].
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company Initial Borrower or a any Permitted Affiliate Parent, as applicable, Parent shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Companyapplicable Borrower, cancel each Facility, and the Commitments thereunder thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
(x) In the event that (A) the Completion Date does not take place on or prior to the Acquisition Escrow Longstop Date or (B) the Acquisition Agreement is terminated prior to the Acquisition Escrow Longstop Date (the date of any such event, the “Acquisition Termination Date”), the Initial Revolving Credit Commitments as of the date of this Agreement that are held by the Initial Lenders as of the date of this Agreement (or their permitted successors and assigns) shall be cancelled in an aggregate principal amount equal to 50% of the Initial Revolving Credit Commitments as of the date of this Agreement, pro rata among such Initial Lenders (or their permitted successors and assigns) (the “Mandatory Cancellation”) and, upon any Mandatory Cancellation, the Borrower shall be obligated to pay to the Administrative Agent, for the account of such Initial Lenders (or their permitted successors or assigns), and on a pro rata basis, (i) if the aggregate Outstanding Amount of Revolving Credit Loans exceeds the Revolving Credit Commitments (after giving effect to such cancellation), an aggregate principal amount of Revolving Credit Loans equal to such excess, together with accrued and unpaid interest thereon, and (ii) accrued and unpaid commitment fees under Section 2.09(a) in respect of the cancelled Revolving Credit Commitments. Notice of the Mandatory Cancellation will be delivered by the Initial Borrower, no later than the second Business Day following the Acquisition Termination Date, to the Administrative Agent, and will provide that such Initial Revolving Credit Commitments and Initial Revolving Credit Loans shall be cancelled and repaid, as applicable, on a date that is no later than the fifth Business Day after such notice is delivered by the Initial Borrower.
Appears in 1 contract
Mandatory. (i) Subject If (1) the Borrower or any of its Subsidiaries Disposes of any property (other than the sale of inventory in the ordinary course of business, the Disposition of Cash Equivalents, or the Disposition of any assets by the Borrower or a Subsidiary to Section 2.05(b)(iithe Borrower or a Subsidiary) below, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Borrower or such Subsidiary shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in an amount which is the lesser of clauses (Avi) the Net Available Cash from such Asset Disposition and (Bix) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)below); provided that provided, however, that, with respect to any Net Cash Proceeds realized so long as no Default or Event of Default shall have occurred and be continuing, the Borrower, at the option of the Borrowersits election, or such Subsidiary, may reinvest all or any portion of such Net Cash Proceeds from (i) sales of obsolete or worn out equipment no longer used or useful in the Net Available Cash received in connection with an Asset Disposition may be used in operation of the business of the Restricted GroupBorrower and its Subsidiaries, including to make acquisitions, investments, capital expenditures or operational expenditures(ii) sales of assets with a fair market value not in excess of $2,000,000, in each case within 12 months the aggregate, in any calendar year, provided that the Borrower may retain up to $750,000 of such receipt, annual aggregate amount and such proceeds shall not all amounts between $750,001 and $2,000,000 may be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, reinvested in operating assets so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used long as within 180 days from after the end receipt of such 12 month Net Cash Proceeds, such reinvestment shall have been consummated or which reinvestment is subject to a binding written agreement with a third party which is not an Affiliate of Borrower which agreement was entered into during such 180-day time period and which reinvestment is consummated within 60 days after such 180-day period expires (as certified by the “Reinvestment End Date”Borrower in writing to the Administrative Agent upon request)); and provided further, then such remaining portion however, that any Net Cash Proceeds not so reinvested shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) immediately applied to the prepayment of the Term Loans and as set forth in Section 2.05(b)(iv); or (2) the Borrower or any of its Subsidiaries are required to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of make a prepayment of the Term Loans that would have otherwise been required pursuant to this from the proceeds of insurance as provided in Section 2.05(b)(i3(d) shall be reduced accordingly; provided, further, that to of the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total AssetsSecurity Agreements.
(ii) Notwithstanding anything in this Agreement Upon the sale or issuance by the Borrower of any of its Equity Interests, the Borrower shall prepay an aggregate principal amount of Loans equal to 50% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by the contrary, no Borrower will be required to make or cause such Subsidiary (such prepayments to be made any prepayment pursuant to Section 2.05(b)(iapplied as set forth in clauses (vi) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Datebelow).
(iii) If Upon the incurrence or issuance by the Borrower or any member of the Restricted Group Incurs or issues its Subsidiaries of any Indebtedness after the 2020 Amendment Effective Date not (other than Indebtedness expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.02), the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on immediately upon receipt thereof by the Borrower or prior such Subsidiary (such prepayments to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceedsbe applied as set forth in clauses (vi) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Each prepayment of Loans resulting in net cash proceeds (as opposed pursuant to such Refinancing Term Loans arising out the foregoing provisions of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalfthis Section 2.05(b) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior applied, first, to the date which is five Business Days Term Facility and to the respective principal repayment installments thereof in inverse order of maturity second, after the receipt by such Borrower Term Facility had been paid in full, to the Accordion Facility and to the respective principal repayment installments thereof in inverse order of such net cash proceedsmaturity and, after the Accordion Facility has been paid in full, third, to the Revolving Credit Facility in the manner set forth in clause (vi) of this Section 2.05(b).
(v) If for any reason the aggregate Outstanding Amount of 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 Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment Prepayments of Term Loans the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loansfirst, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely ratably to those applicable Classes the L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, if a Default or Event of Term Loans selected Default has occurred shall be used to Cash Collateralize the remaining L/C Obligations;. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., to or from the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”Loan Party) to reimburse the Administrative Agent and L/C Issuer or the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate ParentRevolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If at any member of time the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term all outstanding Loans in an amount which is exceeds the lesser of (A) the Net Total Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the BorrowersCommitments, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event event, within ten 2 Business Days after notice thereof from the Agent) pay to the Agent for the accounts of the Lenders the amount of such excess. Such payment shall be applied to pay all amounts of principal outstanding on the Loans pro rata in accordance with Section 3.2. If the Borrowers are required to pay any outstanding LIBOR Loans by reason of this Section prior to the end of the applicable Interest Period therefor, the Borrowers shall pay all amounts due under Section 4.4, provided that such prepayments shall be applied in such a manner as to limit, to the extent possible, the amounts due under Section 4.4.
(ii) With respect to each Permitted Financing, or upon the release of any Borrowing Base Asset from the Borrowing Base Assets Pool as provided in Section 7.16, the Borrowers shall pay to the Agent on the closing date of such rejectionPermitted Financing, for the accounts of the Lenders, an amount in respect of such transaction equal to the greater of (a) 125% of the Borrowing Base Availability attributable to the Property subject to such Permitted Financing or release, or (b) 75% of the Net Proceeds received by the Borrowers in respect of such Permitted Financing, such prepayment to be applied first to prepay the amounts outstanding under the Term Loans Facility and then to the amounts outstanding under the Revolving Facility (provided that such prepayments shall be applied in accordance with such a manner as to limit, to the terms hereof; extent possible, the amounts due under Section 4.4.) provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where in connection with a Permitted Financing comprised of the amount sale of any a Property in the event that the Borrowers utilize the proceeds from such prepayment would be less than sale in connection with a Section 1031 Exchange provided that (x) the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything Section 1031 Exchange is documented in this Agreement a manner reasonably acceptable to the contraryAgent and its counsel, no Borrower will be required to make or cause to be made (y) any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to by any Loan Party in connection with such Section 1031 Exchange are kept with a third party intermediary consistent with the date that is five Business Days after receipt by such member requirements of the Restricted Group of Internal Revenue Code and (z) upon the completion such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectSection 1031 Exchange, the relevant Borrower property received by the Borrowers from such Section 1031 Exchange shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to satisfy the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower requirements for inclusion in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders Borrowing Base Assets Pool in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder7.15.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that that, at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or rescission) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced 95007600_2 accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 100.0 million and 3.05.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date[Reserved].
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement Agreement, Extension Amendment or Extension Amendment, may provide Refinancing Amendment (including on an optional basis as elected by the Borrower) for a less than ratable application that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans established thereunderwithout at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof 95007600_2 pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company Initial Borrower or a any Permitted Affiliate Parent, as applicable, Parent shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Companyapplicable Borrower, cancel each Facility, and the Commitments thereunder thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Within ten Business Days after the realization or receipt by the Borrower or any member Restricted Subsidiary of the Restricted Group of such any Net Available Cash Proceeds from any Asset Sale (or, in other than any Exempted Asset Sale) or series of related Asset Sales (other than any series of related Exempted Asset Sales or Asset Sales where the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(iProceeds therefrom do not exceed $25,000,000), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Borrower shall prepay an aggregate principal amount of Term A Loans in an aggregate amount which is the lesser equal to 100% of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes Proceeds (with any prepayments of determining compliance)the Term A Loans to be applied as set forth in clause (v) below); provided provided, that at the option election of the BorrowersBorrower (as notified by the Borrower to the Administrative Agent within ten Business Days following the date of such Asset Sale), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be assets that are used or useful in the business of the Borrower and the Restricted GroupSubsidiaries (including by way of merger or Investment) (x) within 365 days following the date of such Asset Sale or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), including within 180 days after the end of such 365-day period; provided further, however, that any Net Available Proceeds not subject to make acquisitions, investments, capital expenditures such legally binding commitment or operational expendituresso reinvested within such 365-day period (as such period may be extended as permitted above) (or, in each case either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest the Net Available Proceeds from such Asset Sale as set forth above) shall be immediately applied to the prepayment of the Term A Loans or other term Indebtedness as set forth in this Section 2.04(b)(i).
(ii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Debt Issuance, the Borrower shall prepay an aggregate principal amount of Term A Loans equal to 100% of all such Net Available Proceeds (such prepayment to be applied as set forth in clause (v) below).
(iii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds of any Casualty Event (other than Casualty Events in respect of assets or property that are not Collateral or where the Net Available Proceeds therefrom do not exceed $25,000,000), the Borrower shall prepay an aggregate principal amount of Term A Loans equal to 100% of all Net Available Proceeds received therefrom (such prepayments to be applied as set forth in clause (v) below); provided, that, with respect to any Net Available Proceeds realized with respect to any such Casualty Event, at the election of the Borrower (as notified by the Borrower to the Administrative Agent within 12 months 45 days following such Casualty Event), the Borrower or such Restricted Subsidiary may reinvest all or any portion of such receiptNet Available Proceeds in the replacement or restoration of any properties or assets in respect of which such Net Available Proceeds were paid or in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of such Casualty Event or (y) if the Borrower or such Restricted Subsidiary enters into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (x), within 180 days after the end of such 365-day period; and provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest such Net Available Proceeds as set forth above) shall be immediately applied to the prepayment of the Term A Loans as set forth in this Section 2.04(b)(iii); and provided further, however, that with respect to any such replacement or restoration of property or assets constituting Collateral, the Borrower shall take all actions specified in Section 6.09 in order that such property or asset shall constitute Collateral upon the acquisition or construction thereof.
(iv) Commencing with the Fiscal Year ending December 31, 2017, within ten Business Days after financial statements have been delivered pursuant to Section 7.01(b) and the related Compliance Certificate has been delivered pursuant to Section 7.02 for such Fiscal Year, the Borrower shall prepay an aggregate principal amount of Term A Loans in an amount equal to (x) the Applicable ECF Percentage of Excess Cash Flow for the Fiscal Year covered by such financial statements minus (y) the amount of any optional prepayments during such Fiscal Year of the Loans pursuant to Section 2.04(a) (to the extent such prepayments are of Revolving Loans, only to the extent accompanied by a permanent reduction in the Commitments under the Revolving Facility) to the extent not funded with the proceeds of Indebtedness or from any Matching Equity Contribution (such prepayments to be applied as set forth in clause (v) below).
(v) Each prepayment of Term A Loans pursuant to the foregoing provisions of this Section 2.04(b) shall be applied to the principal repayment installments of the Term A Facility on a pro-rata basis. In the event of any mandatory prepayment of Term A Borrowings made at a time when Term A Borrowings of more than one Class remain outstanding, the Borrower shall select Term A Borrowings to be prepaid so that the aggregate amount of such mandatory prepayment is allocated among Borrowings of Term A Loans of each Class pro rata (or, to the extent provided in any amendment pursuant to Section 2.13 for any Class of Term A Loans, less than pro rata for such Class) based on the aggregate principal amount of outstanding Borrowings of each such Class. Mandatory prepayments of Term A Loans shall be applied to the remaining amortization payments of such Term A Loans on a pro rata basis among all scheduled and outstanding payments.
(vi) If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall immediately prepay Revolving 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 103% of such excess or otherwise in an amount and/or in a manner reasonably acceptable to the applicable L/C Issuer.
(vii) Prepayments of the Revolving Facility made pursuant to Section 2.04(b)(i), first, shall be applied ratably to the L/C Borrowings, second, shall be applied ratably to the outstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Lenders, as applicable. If the terms of any agreement, instrument or indenture pursuant to which any Indebtedness (other than the Obligations) pari passu with or junior in right of payment to the Loans is outstanding (or pursuant to which such Indebtedness is guaranteed) require prepayment of such Indebtedness out of the Net Available Proceeds of any Asset Sale unless such Net Available Proceeds are used to prepay other Indebtedness, then, to the extent not otherwise required by this Section 2.04(b), if the Borrower and the Restricted Subsidiaries shall not have reinvested the Net Available Proceeds thereof as permitted by Section 2.04(b)(i) within the time frame permitted thereby (but prior to the date required to be applied to such Indebtedness), the Loans shall be repaid in an amount not less than the minimum amount that would be required to be prepaid not later than the latest time as and upon such terms so that such other Indebtedness will not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness prepaid pursuant to the terms of the documentation agreement, indenture or instrument or guarantee governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable other Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(iiIf for any reason the Total Outstandings at any time (x) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is Revolver Maturity Date exceeds the lesser of (A) the Net Available Cash from Borrowing Base at such Asset Disposition time and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the BorrowersAggregate Commitments then in effect, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply shall immediately prepay Revolving Loans in an aggregate amount equal to such Net Available Cash excess and (y) on a pro rata basis (determined on or after the basis of Revolver Maturity Date exceeds the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness Borrowing Base at such time; provided, further, that the portion of such net proceeds allocated to Borrowers shall immediately prepay the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Converted Term Loans in accordance with the terms hereof) an aggregate amount equal to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assetsexcess.
(ii) Notwithstanding anything in this Agreement to Upon the contrary, no Borrower will be required to make or cause to be made issuance and sale by the REIT of any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXits Equity Interests, the Borrowers REIT shall cause to be prepaid an aggregate principal amount of Term prepay the Loans in an amount equal to 100% of the Net Cash Proceeds received by the REIT in respect thereof; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the REIT may use all net cash proceeds received therefrom on or prior a portion of such Net Cash Proceeds to (A) pay operating expenses of the Loan Parties due and payable at the time of, or anticipated to become due and payable within sixty (60) days of, such sale or issuance of its Equity Interests and/or (B) make dividends or other distributions in an amount not to exceed the amount required for the REIT to eliminate 105% of its taxable income at the time of such sale or issuance of its Equity Interests or otherwise required for the REIT to maintain its tax status as a real estate investment trust, in the case of each of clauses (A) and (B), so long as (x) the REIT delivers to the date that is five Business Days after receipt Administrative Agent a certificate signed by such member a Responsible Officer of the Restricted Group REIT certifying the amount of such net cash proceedsNet Cash Proceeds permitted to be used for the purposes set forth in clauses (A) and (B), together with a detailed calculation thereof and (y) such Net Cash Proceeds are used for such purposes within sixty (60) days after the date of such sale or issuance of its Equity Interests.
(iviii) If Upon receipt by any Borrower Incurs or issues Loan Party of any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of Net Cash Proceeds from an exchange of existing Term Loans for such Refinancing Term Loans)Investment Asset Payment, such Borrower (or the Company on its behalf) Borrowers shall cause to be prepaid an aggregate principal amount of Term prepay the Loans in an amount equal to 100% of all net cash proceeds received therefrom on such Net Cash Proceeds; provided, however, that so long as no Default or prior to the date which is five Business Days after the receipt by such Borrower Event of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans Default shall have occurred and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectbe continuing, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, REIT may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject use all or a portion of such Net Cash Proceeds to (A) pay operating expenses of the Loan Parties due and payable at the time of, or anticipated to become due and payable within one hundred-twenty (120) days of, such Investment Asset Payment and/or (B) make dividends or other distributions in an amount not to exceed the amount required for the REIT to eliminate 105% of its Pro Rata Share taxable income at the time of any mandatory prepayment such Investment Asset Payment or otherwise required for the REIT to maintain its tax status as a real estate investment trust, in the case of each of clauses (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiA) and Section 2.05(b)(iii(B), so long as (x) by providing written notice (each, a “Rejection Notice”) the REIT delivers to the Administrative Agent a certificate signed by a Responsible Officer of the REIT certifying the amount of such Net Cash Proceeds permitted to be used for the purposes set forth in clauses (A) and the applicable Borrower no later than 5:00 p.m. (B) together with a detailed calculation thereof and (y) such Net Cash Proceeds are used for such purposes within one Business Day hundred-twenty (120) days after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerInvestment Asset Payment.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that that, at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or rescission) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 100.0 million and 3.05.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date[Reserved].
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement Agreement, Extension Amendment or Extension Amendment, may provide Refinancing Amendment (including on an optional basis as elected by the Borrower) for a less than ratable application that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans established thereunderwithout at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt Lendxx’x xeceipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company Initial Borrower or a any Permitted Affiliate Parent, as applicable, Parent shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Companyapplicable Borrower, cancel each Facility, and the Commitments thereunder thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on On or prior to the date that is five fifth Business Days after Day following the realization or receipt by any member Loan Party of net cash proceeds from the Restricted Group sale or disposition of such Net Available Cash any assets (orincluding by way of casualty or condemnation), other than those made in the event ordinary course of Net Available Cash which may business, the Loans shall be reinvested as set forth below in this Section 2.05(b)(i)repaid by an amount equal to such net cash proceeds, together with any accrued interest on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such terminationrepaid; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment repayment shall be required if (a) the aggregate of all such net cash proceeds in any fiscal year is less than $2,500,000, or (b) if Borrower notifies Agent on or before the date such repayment would otherwise be required under this Section 2.05(b)(i2.04(b) shall be that Borrower intends to use any or all of such net cash proceeds to invest in assets necessary or useful in the business of Borrower within 360 days of the date of such sale or other disposition, in which case, the repayment of the Loans which is otherwise required where under this Section 2.04(b)(i) up to the amount of any the net cash proceeds to be reinvested pursuant to this Section 2.04(b)(i) need not be made, but if all or part of such prepayment would net cash proceeds are not used within such 360 day period, then the Loans shall be less than repaid by an amount equal to such net cash proceeds calculated based on the greater portion of $200,000,000 and 3.0% of Total Assetssuch net cash proceeds not invested pursuant to this Section 2.06(b)(i) on the day immediately following such 360 day period following such sale or other disposition.
(ii) Notwithstanding anything in this Agreement to On the contraryfirst Business Day following the receipt of any net cash proceeds from the issuance by Parent or any of its Subsidiaries of Indebtedness (other than issuances of Subordinated Debt, no unless otherwise required herein), the Loans shall be repaid by the amount of such net cash proceeds (including, without duplication, any amounts received by Borrower will be required to make from or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if on behalf of the Financial Covenant was not required to be tested for Parent as equity contributions with the most recent Test Period ending prior to proceeds of such issuance), together with accrued interest on the Reinvestment End Dateportion of the Loans repaid.
(iii) If any member Each prepayment of Loans pursuant to the foregoing provisions of Section 2.04(b)(i) and (ii) shall be applied, first, to the principal repayment installments of the Restricted Group Incurs or issues any Indebtedness after Delayed Draw Term Loans on a pro-rata basis and, second, to the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant Revolving Facility in the manner set forth in clause iv of Section 2.04(b). Subject to Section 4.09 of Xxxxx XX2.14, the Borrowers such prepayments shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior paid to the date that is five Business Days after receipt by such member Lenders in accordance with their respective Applicable Percentages in respect of the Restricted Group of such net cash proceedsrelevant Facilities.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Total Revolving Credit LoansOutstandings at any time exceed the Revolving Facility at such time, Swing Line Borrower shall immediately prepay Revolving Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings (together with all accrued but unpaid interest thereon) and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided provided, however, that such Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.04(b)(iv) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under Total Revolving Outstandings exceed the Revolving Facility at such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effecttime.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Cbeyond, Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowSubsection 2.05(b)(vi), if in the event, and on each occasion, that any member Net Cash Proceeds are received by or on behalf of the Restricted Group makes Borrower or any Asset Disposition that results of its Subsidiaries in the realization or receipt by respect of any member of the Restricted Group of Net Available CashPrepayment Event, the relevant Borrowers shall cause to be prepaid on or prior to the date that is Borrower shall, within five (5) Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds are received (or, in the event case of Net Available Cash which may be reinvested as set forth below a Prepayment Event described in this Section 2.05(b)(iclause (b) of the definition of the term “Prepayment Event”, on or before the next succeeding Business Day following the occurrence of such Prepayment Event), on prepay the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or the amount of such Net Cash Proceeds (such mandatory prepayments to be applied as set forth in clause (ii) below); provided that, in the case of any event described in clause (a) of the definition of the term “Prepayment Event”, so long as no Default shall have occurred and be continuing and notice of the intent to utilize the reinvestment provisions of this proviso is provided to the Administrative Agent prior to the date that is five Business Days such prepayment would otherwise be required to be made, if the Borrower and/or any of its Subsidiaries invests (or commits to invest) the Net Cash Proceeds from such event (or a portion thereof) within 365 days after receipt by of such member Net Cash Proceeds in assets used or useful in the business of the Restricted Group Borrower and its Subsidiaries, then no prepayment shall be required pursuant to this paragraph in respect of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to Net Cash Proceeds from such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower Prepayment Event (or the Company on its behalf) shall cause applicable portion of such Net Cash Proceeds, if applicable, with any balance required to be prepaid an aggregate principal amount utilized to prepay the Loans in accordance with this provision) except to the extent of Term Loans any such Net Cash Proceeds therefrom that have not been so invested (or committed to be invested) by the end of such 365-day period (or if committed to be so invested within such 365-day period, have not been so invested within 18 months after the date of receipt of such Net Cash Proceeds), at which time a prepayment shall be required in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceedsNet Cash Proceeds that have not been so invested.
(vii) If for any reason Unless otherwise agreed to by the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations Lenders (including pursuant to this Section 2.05(b)(v) unlessthe Intercreditor Agreement), after giving effect to the each prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b2.05(b)(i) shall be applied ratably (A1) applied either first to the outstanding principal amount of the Initial B Loans as of such date, (x2) ratably second, pro rata to each Class the outstanding principal of Term the Initial A Loans then outstanding or and the Delayed Draw Loan (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(viiif any), to any Class or Classes as of Term Loans, (B) applied, with respect to each such Class for which prepayments will date and payment shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid made to the Appropriate appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) as of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt)date, and (23) any Additional Facility Joinder Agreement or Extension Amendmentthereafter the amount, if any, remaining after the repayment in full of the Loans may provide (including on an optional basis as elected be retained by the Borrower) Borrower for a less than ratable application use in the ordinary course of prepayments to any Class of Term Loans established thereunderits business.
(viiiii) A The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two three (3) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedprepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be mademade by the Borrower. Except as provided in Section 2.17, each mandatory prepayment of Loans shall be without premium or penalty. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to clause (b)(i) of this Section 2.05(b)(ii) and Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one p.m., New York time, two (2) Business Day Days after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerthe Borrower (or the applicable Restricted Subsidiary) and may be applied by the Borrower or such Restricted Subsidiary in any manner not prohibited by this Agreement.
(viiiiv) All prepayments under this Section 2.05 shall be accompanied by all accrued and unpaid interest thereon.
(v) Notwithstanding anything to the contrary contained in any other provisions provision of this Section 2.052.05(b), (A) to the extent that any or all mandatory prepayment required pursuant to Section 2.05(b)(i) (without giving effect to this Section 2.05(b)(v)) is attributable to a Prepayment Event by a Foreign Subsidiary of the Net Available Cash of any Asset Disposition by Borrower or an Excluded Domestic Subsidiary, no such prepayment (or a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not thereof) shall be required to be applied made if either (A) such prepayment (or portion thereof, or dividend or distribution to repay Term Loans facilitate such prepayment) shall, at the times provided in this Section 2.05(b) but may time it is required to be retained made, be prohibited by applicable Requirement of Law (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the applicable member fiduciary and statutory duties of the Restricted Group so longdirectors of relevant Subsidiaries), but only so longprovided that the Borrower and its Subsidiaries shall make commercially reasonable efforts with respect to such Requirement of Law to permit such prepayment (or portion thereof, as the applicable local Law will or dividend or distribution to facilitate such prepayment) in accordance therewith (it being understood that such efforts shall not permit repatriation require (x) any expenditure in excess of a nominal amount of funds or (y) modifications to the jurisdiction organizational or tax structure of the relevant Borrower and its Subsidiaries to permit such prepayment (each Borrower hereby agreeing or portion thereof, or dividend or distribution to use facilitate such prepayment)), or (B) a Restricted Payment or other distribution is reasonably necessary (notwithstanding the Loan Parties’ commercially reasonable efforts to cause make such mandatory prepayment without making such Restricted Payment or other distribution) in connection with such prepayment (or portion thereof) and the Borrower determines in good faith that the Borrower or any Subsidiary would incur a material liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution (outside of any taxes applicable member of to such Prepayment Event that both (x) are deducted in calculating the Net Cash Proceeds thereof and (y) would be incurred even if no such Restricted Group Payment or other distribution were made). Notwithstanding anything in the preceding sentence to promptly take all actions reasonably the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) required by the applicable local law to permit such repatriationunder Section 2.05(b)(i), and once the Borrower shall make such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and prepayment in an amount equal to the lesser of (x) the amount of such repatriated prepayment previously required to have been made without having given effect to such limitations or restrictions and (y) the amount of cash and Cash Equivalents on hand at such time, in each case, less the amount by which the Net Available Cash will be promptly Proceeds from the Prepayment Event were previously used for the permanent repayment of Indebtedness (and including any reductions in any event not later than five Business Days after such repatriationcommitments related thereto).
(vi) applied (net of additional Taxes payable or reserved against as a result thereof) Notwithstanding anything to the repayment contrary, no prepayment of the Term Loans shall be required pursuant to this Section 2.05(b), (x) if such prepayment is prohibited by the Intercreditor Agreement or (y) prior to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation “Discharge of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences First Priority Obligations” (as determined defined in good faith by the Intercreditor Agreement) if such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be amounts are applied to repay Term Loans at prepay the times provided “First Priority Obligations” (as defined in this Section 2.05(b) but may be retained the Intercreditor Agreement), as required by the applicable member of the Restricted GroupFirst Lien Credit Agreement.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Mandatory. The Aggregate Revolving Commitment shall be automatically and immediately reduced without notice to the Borrower or any other Credit Party:
(i) Subject to Section 2.05(b)(ii) below, if any member of on such date and by the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be prepayment required to be made under any of Sections 2.06(b), (c), (d), (e) or (f) (without duplication) that is applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Revolving Loans in accordance with the terms hereofof Section 2.06, provided that, notwithstanding the foregoing, so long as there exists no Default at such time, no such reduction in the Aggregate Revolving Commitment will be made with respect to any prepayment required to be made under Section 2.06(f),
(ii) on such date that any prepayment is required to be made under any of Sections 2.06(b), (c), (d), (e) or (f) and the prepayment Outstanding Amount of the Term B Loans and is zero (or has been reduced to zero by such prepayment), such reduction in the repurchase or prepayment of Other Applicable Indebtedness, and the Aggregate Revolving Commitment to be in such amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; providedNet Cash Proceeds, furtherNet Debt Proceeds, Net Issuance Proceeds and/or Extraordinary Receipts, as applicable, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be are not applied to prepay the Term B Loans but would have been if the Outstanding Amount of such Term B Loans was in accordance with excess of such proceeds, provided that, notwithstanding the terms hereof; providedforegoing, furtherso long as there exists no Default at such time, however, that no such prepayment under this Section 2.05(b)(i) shall be required where reduction in the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower Aggregate Revolving Commitment will be made with respect to any prepayment required to make or cause to be made any prepayment pursuant to under Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.2.06(f), and
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, if after giving effect to any reduction or termination of Aggregate Revolving Commitment under this Section 2.04 the prepayment in full Letter of Credit Sublimit exceeds the applicable Aggregate Revolving Credit Loans and Swing Line LoansCommitment at such time, the aggregate Outstanding Amount under such Class Letter of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) Sublimit shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected automatically reduced by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerexcess.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that that, at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period period) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Term Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 45.0 million and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date[Reserved].
(iii) If (A) prior to the SPV Structure Termination Date, any Loan Party or any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such Loan Party or member of the Restricted Group, as applicable, of such net cash proceeds and (B) on or after the SPV Structure Termination Date, any member of the Restricted Group Incurs or issues any Indebtedness after the Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Annex IV, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on a date that is five Business Days from receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a any Permitted Affiliate Parent, as applicable, Parent shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Companyapplicable Borrower, cancel each Facility, and the Commitments thereunder thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
(x) In the event that (A) the Completion Date does not take place on or prior to the Acquisition Escrow Longstop Date, (B) the Acquisition Agreement is terminated prior to the Acquisition Escrow Longstop Date or (C) the Acquisition is consummated without the use of the Acquisition Escrow Proceeds Funded Amount (the date of any such event, the “Acquisition Escrow Termination Date”), the SPV Borrower shall cause to be prepaid an aggregate principal amount of the Initial Term Loans equal to the Acquisition Escrow Proceeds Funded Amount, together with accrued and unpaid interest (the “Special Mandatory Repayment”). Notice of the Special Mandatory Repayment will be delivered by the SPV Borrower, no later than the second Business Day following the Acquisition Escrow Termination Date, to the Administrative Agent and the Acquisition Escrow Agent, and will provide that such Initial Term Loans shall be repaid on a date that is no later than the fifth Business Day after such notice is delivered in accordance with the terms of the Acquisition Escrow Agreement; provided that if the SPV Borrower shall fail to so deliver such notice of Special Mandatory Repayment within such time period, the Administrative Agent shall be entitled to deliver such notice on behalf (or in lieu) of the SPV Borrower to the Acquisition Escrow Agent.
(xi) In the event that the Completion Date occurs and the purchase price for the Acquisition set forth in the Acquisition Agreement shall be reduced in excess of 10% of the total purchase price contemplated by the Acquisition Agreement on the date hereof, the SPV Borrower shall cause to be prepaid an aggregate principal amount of the Initial Term Loans equal to the Acquisition Escrow Proceeds Funded Amount less the Acquisition Escrow Proceeds Funded Amount actually used to pay the purchase price for the Acquisition.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If the Administrative Agent notifies the Borrower at any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure time that the Consolidated Senior Secured Net Leverage Ratio does not Total Outstandings at such time exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the BorrowersAggregate Commitments then in effect, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent notthen, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five two Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectnotice, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or the Borrower shall Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 105% of the Aggregate Commitments then in effect; provided that such provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Total Outstandings exceed the Aggregate Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viii) Each prepayment Prepayments of Term Loans the Revolving Facility made pursuant to this Section 2.05(b) ), first, shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term L/C Borrowings and the Swing Line Loans, (B) appliedsecond, with respect to each such Class for which prepayments will shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid applied ratably to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term outstanding Revolving Credit Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinaboveand, (1) third, but only in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses under clause (i) through above, shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility required pursuant to clause (vi) or (ii) of this Section 2.05(b) at least two Business Days prior to ), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and, in the case of clause (i) above, the Cash Collateralization of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis remaining L/C Obligations in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but full may be retained by the applicable member Borrower for use in the ordinary course of its business. Upon the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation drawing of any Letter of such affected Net Available Credit that has been Cash is permitted under Collateralized, the applicable local law, such repatriation will funds held in the Cash Collateral Account shall be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable without any further action by or reserved against as a result thereofnotice to or from the Borrower or any other Loan Party) to reimburse the repayment of L/C Issuer or the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate ParentLenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) belowFor any Excess Cash Flow Period, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the realization or receipt by any member of the Restricted Group of such Net Available Cash related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, in if later, the event of Net Available Cash date on which may such financial statements and such Compliance Certificate are required to be reinvested as set forth below in this Section 2.05(b)(idelivered), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), applicable Borrowers shall prepay an aggregate principal amount of Term Loans in an amount which is the lesser of equal to (A) 50% (as may be adjusted pursuant to the Net Available proviso below) of Excess Cash from Flow for such Asset Disposition and Excess Cash Flow Period, minus (B) an the sum of (1) the aggregate amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and of voluntary principal prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the BorrowersLoans, all or any portion in each case, made during the period commencing on the first day of the Net Available relevant Excess Cash received in connection Flow Period and ending on the date immediately prior to the date on which the relevant Excess Cash Flow prepayment is or would be required to be made (including prepayments at a discount to par and open market repurchases, with an Asset Disposition may be used in credit given for the business actual amount of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditurescash payment) (except prepayments of Loans under any Revolving Tranche that are not accompanied by a corresponding permanent commitment reduction of the Revolving Tranches), in each case within 12 months other than to the extent that any such prepayment is funded with the proceeds of such receiptSpecified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness and such proceeds shall (2) any amount not be required to be applied to prepay such prepayment pursuant to Section 2.05(b)(viii) and (ix); provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Term Loans except Consolidated First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was equal to or less than 4.00:1.00 or 3.50:1.00, respectively; provided further that no prepayment shall be required with respect to any Excess Cash Flow Period to the extent not, within 12 months of Excess Cash Flow for such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets10,000,000.
(ii) Notwithstanding anything If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in this Agreement the receipt by the Parent Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $20,000,000 (a “Relevant Transaction”), then, except to the contraryextent the applicable Borrowers elect to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 7.04, no Borrower will be required to make or cause to be made any prepayment pursuant the applicable Borrowers shall prepay, subject to Section 2.05(b)(i2.05(b)(viii) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
and (iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXix), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior (as may be adjusted pursuant to the date second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof by the Parent Borrower or such Restricted Subsidiary; provided that the applicable Borrowers may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is five Business Days after receipt secured by the Collateral on a first lien “equal and ratable” basis with Liens securing the Obligations to the extent such member of other Indebtedness and the Restricted Group Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such net cash proceedsRelevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided further that, so long as no Event of Default shall have occurred and be continuing or would result therefrom, such prepayment percentage shall be reduced to 50% or 0% if, on a Pro Forma Basis after giving effect to such Asset Sale or Casualty Event, as the case may be, and the use of proceeds therefrom, the Consolidated First Lien Net Leverage Ratio would be equal to or less than 3.50:1.00 or 3.00:1.00, respectively.
(iviii) If (A) Upon the incurrence or issuance by the Parent Borrower or any Borrower Incurs or issues Restricted Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause any Indebtedness not expressly permitted to be prepaid incurred or issued pursuant to Section 7.01, the applicable Borrowers shall prepay an aggregate principal amount of Term Loans Loan Tranches in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the immediately upon receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected thereof by the applicable Parent Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerRestricted Subsidiary.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Atotech LTD)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowCommencing with the fiscal year ending December 31, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash2013, the relevant Borrowers shall cause to be prepaid on or prior to the date that is within five Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the realization or receipt by any member related Compliance Certificate has been delivered pursuant to Section 6.02(a), the Borrower shall prepay an aggregate principal amount of the Restricted Group of Loans (such Net Available Cash (or, in the event of Net Available Cash which may prepayments to be reinvested applied as set forth below in this Section 2.05(b)(i), on clauses (v) and (viii) below) equal to the date positive amount (if any) rounded down to an integral of $100,000 of (A) 50% of Excess Cash Flow for the fiscal year covered by such reinvestment period expires), subject to Section 2.05(b)(vii), an financial statements minus (B) the aggregate principal amount of Term Loans prepaid pursuant to Section 2.04(a)(i) during such period and the aggregate principal amount of Term Loans prepaid pursuant to Section 2.17 to the extent funded with internally generated cash (it being understood and agreed that such amount shall be the amount of the applicable Discounted Voluntary Prepayment as opposed to the par value of the Term Loans prepaid).
(ii) If any Loan Party or any of its Subsidiaries Disposes of any property pursuant to Section 7.05(g), which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay an aggregate principal amount which is of Loans equal to 100% of such Net Cash Proceeds no later than the lesser of second Business Day following the receipt thereof by such Person (Asuch prepayments to be applied as set forth in clauses (v) the Net Available Cash from such Asset Disposition and (Bviii) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)below); provided that provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.04(b)(ii), at the option election of the BorrowersBorrower, and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be used in the business of the Restricted Groupoperating assets (including, including to make acquisitionswithout limitation, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, Monitoring Contracts) so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used long as within 180 days from after the end receipt of such 12 month period (the “Reinvestment End Date”))Net Cash Proceeds, then such remaining portion purchase shall have been consummated; and provided further, however, that any Net Cash Proceeds not so reinvested shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) immediately applied to the prepayment of the Term Loans as set forth in this Section 2.04(b)(ii).
(iii) Upon the incurrence or issuance by any Loan Party or any of its Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clauses (v) and (viii) below).
(iv) Upon any Extraordinary Receipt received by or paid to or for the repurchase account of any Loan Party or prepayment any of Other Applicable Indebtednessits Subsidiaries, and not otherwise included in clause (ii) and (iii) of this Section 2.04(b), the Borrower shall prepay an aggregate principal amount of prepayment Loans equal to 100% of all Net Cash Proceeds received therefrom no later than the Term Loans that would have otherwise been required pursuant second Business Day following the receipt thereof by such Loan Party or such Subsidiary (such prepayments to this Section 2.05(b)(ibe applied as set forth in clauses (v) shall be reduced accordinglyand (viii) below); provided, furtherhowever, that to that, at the extent election of the holders of Other Applicable Indebtedness decline to Borrower, and so long as no Default shall have occurred and be continuing, such indebtedness repurchased Loan Party or prepaid, the declined amount shall promptly (and in any event such Subsidiary may apply within ten Business Days 180 days after the date receipt of such rejection) be applied cash proceeds to prepay replace or repair the Term Loans equipment, fixed assets or real property in accordance with the terms hereofrespect of which such cash proceeds were received; and provided, further, however, that no such any cash proceeds not so applied shall be immediately applied to the prepayment under of the Loans as set forth in this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans2.04(b)(iv), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.04(b) shall be applied, first, subject to Section 2.11(g) and any intercreditor arrangement established pursuant to Section 2.16, to each Term Facility pro rata and to the principal repayment installments thereof on a pro-rata basis with respect to such Term Facility; provided that any Extended Term Loans or Refinancing Term Loans may be prepaid on a less (but not greater) than pro rata basis if agreed to by the Lenders holding such Loans; and second, to the Revolving Credit Facility in the manner set forth in clause (viii) of this Section 2.04(b).
(vi) Notwithstanding any of the other provisions of clause (ii), (iii) or (iv) of this Section 2.04(b), so long as no 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 (ii), (iii) or (iv) of this Section 2.04(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Loans on such date is less than or equal to $1,000,000, the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (ii), (iii) or (iv) of this Section 2.04(b) to be applied to prepay Loans exceeds $3,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.04(b). Upon the occurrence of a Default during any such deferral period, following delivery of a written request by the Administrative Agent, the Borrower shall immediately prepay the Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Loans under this Section 2.04(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not previously been so applied.
(vii) If for any reason the aggregate Outstanding Amount of Total Revolving Credit LoansOutstandings at any time exceed the Revolving Credit Facility at such time, Swing Line the Borrower shall immediately prepay Revolving Credit Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.04(b)(vii) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Revolving Credit Commitments exceeds Outstandings exceed the aggregate Revolving Credit Commitments of such Class Facility then in effect.
(viviii) Each prepayment Prepayments of Term Loans the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii2.04(b), to any Class or Classes of Term Loansfirst, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior ratably to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided thatL/C Borrowings, subject second, shall be applied ratably to the payment when due outstanding Revolving Credit Loans, and, third, following the occurrence and during the continuation of any amounts owing as a result thereof pursuant an Event of Default, shall be used to Section 3.10Cash Collateralize the remaining L/C Obligations; and the amount remaining, such Borrower may rescind (or delay if any, after the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or L/C Borrowings and Revolving Credit Loans outstanding at such time and any portion required Cash Collateralization of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis remaining L/C Obligations in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but full may be retained by the applicable member Borrower for use in the ordinary course of its business. Upon the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation drawing of any Letter of such affected Net Available Credit that has been Cash is permitted under Collateralized, the applicable local law, such repatriation will funds held as Cash Collateral shall be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable without any further action by or reserved against as a result thereofnotice to or from the Borrower or any other Loan Party) to reimburse the repayment of L/C Issuer or the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate ParentRevolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member To the extent that the Net Cash Proceeds of the Restricted Group makes any Asset Disposition that results in the realization Sale or Extraordinary Receipt exceeds $15,000,000 per Asset Sale or receipt by any member of the Restricted Group of Net Available CashExtraordinary Receipts, the relevant Borrowers Borrower shall cause deliver the notice required under Section 6.3(c) hereunder (it being agreed and understood that failure to be prepaid on deliver such notice shall not constitute a Default or prior to the date that is five Business Days after the realization or receipt by any member Event of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Default hereunder) and prepay an aggregate principal amount of Term Loans equal to 100% of such excess Net Cash Proceeds promptly after receipt thereof (or if the Borrower in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as good faith intends to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring use such Net Available Cash Proceeds to acquire, improve or maintain Pipeline Assets, Real Property or Easements related to Pipeline Assets or for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may capital assets to be used in any line of business not prohibited by Section 7.7, then on or before the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of 365th day after such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except Asset Sale to the extent notthat, within 12 months of such receipt365 day period, so the Relevant Parties have not used or contractually committed to be so used (it being understood such Net Cash Proceeds for such purpose, provided, that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion prepayment shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans 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 net cash proceeds received therefrom on or prior such prepayments to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceedsbe applied as set forth in clause (iii) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(vii) If for any reason the aggregate Outstanding Amount of Revolving Credit LoansTotal Outstandings at any time exceed the Aggregate Commitments, Swing Line the Borrower shall immediately prepay Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.4(b) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line LoansL/C Borrowings, the aggregate Outstanding Amount under such Class of Revolving Credit Total Outstandings exceed the Aggregate Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiii) Each prepayment Prepayments of Term Loans the Facility made pursuant to this Section 2.05(b2.4(b) shall be (A) applied either (x) applied, first, ratably to each Class of Term the L/C Borrowings, second, ratably to the outstanding Swingline Borrowings, third, ratably to the outstanding Base Rate Loans then outstanding or (y) as requested by a Borrower in other than the notice delivered pursuant to Section 2.05(b)(viiSwingline Loans), fourth, ratably to any Class or Classes of Term the outstanding Eurodollar Rate Loans, (B) appliedand fifth, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments under Section 2.4(b)(ii) only, to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through or (vii) of this Section 2.05(b) at least two Business Days prior to 2.4(b), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings and Loans outstanding at such time and, in the case of prepayments under Section 2.4(b)(ii) only, the Cash Collateralization of the applicable Facility or other conditional eventremaining L/C Obligations in full, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member Borrower. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the L/C Issuer or the Lenders, as applicable. Prepayments of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans Facility made pursuant to this Section 2.05(b2.4(b) to the extent provided herein and (B) to the extent that shall not result under any circumstance in a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member permanent reduction of the Restricted GroupCommitments.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. In the event and on each occasion that, after the Closing Date, any Net Proceeds are received by or on behalf of the Company or any of its Subsidiaries in respect of any Mandatory Prepayment Event, within three Domestic Business Days after such Net Proceeds are received, the Company shall (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior deliver to the date that is five Business Days after Agent a notice thereof setting forth the realization or receipt by any member of the Restricted Group nature of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition Mandatory Prepayment Event and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms Net Proceeds (together with a reasonably detailed calculation thereof, ) and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term prepay Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower Net Proceeds (or the aggregate amount of the Loans then outstanding, if less); provided that if the Company on its behalfshall in such notice to the Agent state that the Company intends to cause such Net Proceeds from a Mandatory Prepayment Event arising from an Asset Sale of the type described in clause (b) shall cause of the definition thereof (or a portion thereof specified in such notice) to be prepaid an aggregate principal applied, or committed to be applied, within 180 days after receipt of such Net Proceeds to improve, upgrade or repair the assets subject to such casualty or condemnation event, then the amount of Term the prepayment required to be made under this Section 2.12(b) on account of such Mandatory Prepayment Event shall be reduced by the amount of the Net Proceeds specified by the Company in such notice as intended to be so applied; provided that if any such Net Proceeds have not been so applied, or committed to be applied under one or more legally binding agreements, by the end of such 180-day period, then, not later than the last day of such 180-day period, the Company shall provide to the Agent written notice thereof and on the first Domestic Business Day following the end of such 180-day period, the Company shall prepay Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided Net Proceeds that such Borrower shall have not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) been so applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amountsLoans then outstanding, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agentif less). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) belowIn the event, if and on each occasion, that any member Net Cash Proceeds are received by or on behalf of the Restricted Group makes Borrower or any Asset Disposition that results of its Subsidiaries in the realization or receipt by respect of any member of the Restricted Group of Net Available CashPrepayment Event, the relevant Borrowers shall cause to be prepaid on or prior to the date that is Borrower shall, within five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds are received (or, in the event case of a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”, on or before the next succeeding Business Day following the occurrence of such Prepayment Event), prepay Loans in an aggregate amount equal to 100% of the amount of such Net Available Cash which may Proceeds (such mandatory prepayments to be reinvested applied as set forth below in clause (ii) below); provided that, in the case of any event described in clause (a) of the definition of the term “Prepayment Event”, so long as no Default shall have occurred and be continuing and notice of the intent to utilize the reinvestment provisions of this Section 2.05(b)(i), on proviso is provided to the Administrative Agent prior to the date such reinvestment period expires)prepayment would otherwise be required to be made, subject if the Borrower and/or any of its Subsidiaries invests (or commits to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (Ainvest) the Net Available Cash Proceeds from such Asset Disposition and event (Bor a portion thereof) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis within 365 days after taking into account such Asset Dispositions and prepayments (but ignoring receipt of such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all Proceeds in assets used or any portion of the Net Available Cash received in connection with an Asset Disposition may be used useful in the business of the Restricted GroupBorrower and its Subsidiaries, including then no prepayment shall be required pursuant to make acquisitions, investments, capital expenditures or operational expenditures, this paragraph in each case within 12 months respect of such receiptNet Cash Proceeds from such Prepayment Event (or the applicable portion of such Net Cash Proceeds, and such proceeds shall not be if applicable, with any balance required to be applied utilized to prepay the Term Loans in accordance with this provision) except to the extent not, within 12 months of any such Net Cash Proceeds therefrom that have not been so invested (or committed to be invested) by the end of such receipt, so used 365-day period (or contractually if committed to be so used (it being understood that if any portion invested within such 365-day period, have not been so invested within 18 months after the date of receipt of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)Net Cash Proceeds), then such remaining portion at which time a prepayment shall be required in an amount equal to prepay the such Net Cash Proceeds that have not been so invested.
(ii) Each prepayment of Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; providedapplied, furtherfirst, that in direct order of maturity to the next four principal repayment installments of the Term Facility (and, to the extent provided in 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 Business Days after the date of such rejection) be applied to prepay the Term Loans definitive loan documentation therefor in accordance with Section 2.14, of any Loans under Incremental Term Commitments) and, thereafter, to the terms hereofremaining scheduled principal installments of the Term Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.14, of any Loans under Incremental Term Commitments) on a pro rata basis; providedand second, further, however, that no such prepayment under to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (iv) of this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date2.05(b).
(iii) If the Administrative Agent notifies the Borrower at any member of time that the Restricted Group Incurs or issues any Indebtedness after Total Revolving Credit Outstandings at such time exceed the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXRevolving Credit Facility in effect at such time, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five then, within two Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectnotice, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed the Revolving Credit Facility then in effect; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(iii) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Revolving Credit Commitments exceeds Outstandings exceed the aggregate Revolving Credit Commitments of such Class Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(viiv) Each prepayment Except as otherwise provided in Section 2.16, prepayments of Term Loans the Revolving Credit Facility made pursuant to this Section 2.05(b) ), first, shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term L/C Borrowings and the Swing Line Loans, (B) appliedsecond, with respect to each such Class for which prepayments will shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid applied ratably to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term outstanding Revolving Credit Loans, subject and, third, shall be used to Section 2.05(b)(vii). Notwithstanding clause (A) hereinaboveCash Collateralize the remaining L/C Obligations in full; and, (1) in the case of prepayments of the Revolving Credit Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through (v) of this Section 2.05(b) at least two Business Days prior to ), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis remaining L/C Obligations in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable member L/C Issuer or the applicable Revolving Credit Lenders, as applicable.
(v) Notwithstanding anything to the contrary contained in any other provision of this Section 2.05(b), to the extent any mandatory prepayment required pursuant to Section 2.05(b)(i) (without giving effect to this Section 2.05(b)(v)) is attributable to a Prepayment Event by a Foreign Subsidiary of the Restricted Group so longBorrower or an Excluded Domestic Subsidiary, but only so longno such prepayment (or a portion thereof) shall be required to be made if either (A) such prepayment (or portion thereof, as or dividend or distribution to facilitate such prepayment) shall, at the time it is required to be made, be prohibited by applicable local Requirement of Law will (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the fiduciary and statutory duties of the directors of relevant Subsidiaries), provided that the Borrower and its Subsidiaries shall make commercially reasonable efforts with respect to such Requirement of Law to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) in accordance therewith (it being understood that such efforts shall not permit repatriation require (x) any expenditure in excess of a nominal amount of funds or (y) modifications to the jurisdiction organizational or tax structure of the relevant Borrower and its Subsidiaries to permit such prepayment (each Borrower hereby agreeing or portion thereof, or dividend or distribution to use facilitate such prepayment)), or (B) a Restricted Payment or other distribution is reasonably necessary (notwithstanding the Loan Parties’ commercially reasonable efforts to cause make such mandatory prepayment without making such Restricted Payment or other distribution) in connection with such prepayment (or portion thereof) and the Borrower determines in good faith that the Borrower or any Subsidiary would incur a material liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution (outside of any taxes applicable member of to such Prepayment Event that both (x) are deducted in calculating the Net Cash Proceeds thereof and (y) would be incurred even if no such Restricted Group Payment or other distribution were made). Notwithstanding anything in the preceding sentence to promptly take all actions reasonably the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) required by the applicable local law to permit such repatriationunder Section 2.05(b)(i), and once the Borrower shall make such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and prepayment in an amount equal to the lesser of (x) the amount of such repatriated prepayment previously required to have been made without having given effect to such limitations or restrictions and (y) the amount of cash and Cash Equivalents on hand at such time, in each case, less the amount by which the Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to Proceeds from the Prepayment Event were previously used for the permanent repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and Indebtedness (B) to the extent that a Borrower has determined including any reductions in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Groupcommitments related thereto).
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(iiIf (1) below, if the Borrower or any member Restricted Subsidiary of the Restricted Group makes Borrower Disposes of any Asset property or assets (other than any Disposition that of any property or assets permitted by Sections 7.05 (a), (b), (c), (d), (e), (f), (g), (h), (k), (l), (m), (n), (o), (p), (q) and (r) or (2) any Casualty Event occurs, which results in the realization or receipt by any member of the Borrower or Restricted Group Subsidiary of Net Available CashCash Proceeds, subject to Section 2.05(b)(iv), the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that which is five Business Days after the realization or date of the receipt by the Borrower or any member of the Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii)Proceeds, an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring all such Net Available Cash for purposes of determining compliance))Proceeds; provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any the Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness Permitted First Priority Refinancing Debt, Other Term Loans, Other Notes, Permitted Ratio Debt (to the extent secured by Liens on the Collateral on a pari passu basis with the Obligations) and the Permitted Refinancing of any such Indebtedness, in each case pursuant to the terms of the documentation governing such Indebtedness with an amount equal to the net proceeds Net Cash Proceeds of such Asset Disposition or Casualty Event (such Senior Secured Indebtedness Permitted First Priority Refinancing Debt, Other Term Loans, Other Notes or Permitted Ratio Debt (or the Permitted Refinancing of any such Indebtedness) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Borrower may apply the amount of such Net Available Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds Net Cash Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Cash Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Cash Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten five Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to If the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment Effective Funding Date (A) not permitted to be Incurred incurred or issued pursuant to Section 4.09 Section 7.03 or (B) that constitutes Replacement Term Loans or Credit Agreement Refinancing Indebtedness in respect of Xxxxx XXany Class of Terms Loans, Revolving Credit Loans or Revolving Credit Commitments, the Borrowers Borrower shall cause to be prepaid an aggregate principal amount of such Term Loans (or, in the case of Credit Agreement Refinancing Indebtedness in respect of Revolving Credit Loans or Revolving Credit Commitments, prepay such Revolving Credit Loans and terminate such Revolving Credit Commitments) in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt by the Borrower or such Borrower Restricted Subsidiary of such net cash proceedsNet Cash Proceeds.
(viii) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Obligations at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly after receipt of written notice from the Administrative Agent prepay the Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(vSection 2.05(b)(iii) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the such aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiv) Each Notwithstanding any other provisions of this Section 2.05, (i) to the extent that the repatriation to the United States of any or all of the Net Cash Proceeds of any Disposition by a Foreign Subsidiary (“Foreign Disposition”) or the Net Cash Proceeds of any Casualty Event incurred by a Foreign Subsidiary (“Foreign Casualty Event”) would be (x) prohibited or delayed by applicable local law or (y) restricted by applicable material constituent documents or other material agreement, an amount equal to the Net Cash Proceeds that would be so affected were the Borrower to attempt to repatriate such cash will not be required to be applied to repay Term Loans at the times provided in this Section 2.05 if the applicable local law or applicable material constituent documents would not otherwise permit repatriation to the United States (the Borrower hereby agrees to use all commercially reasonable efforts (as determined in the Borrower’s reasonable business judgment) to overcome or eliminate any such restrictions on repatriation even if the Borrower does not intend to actually repatriate such cash, so that an amount equal to the full amount of such Net Cash Proceeds will otherwise be subject to repayment under this Section 2.05, and if within one year following the date on which the respective prepayment would otherwise have been required such repatriation of any of such affected Net Cash Proceeds is permissible under the applicable local law or applicable material constituent documents, even if such cash is not actually repatriated at such time, an amount equal to the amount of the Net Cash Proceeds will be promptly (and in any event not later than five Business Days) applied (net of an amount equal to the additional taxes of the Borrower, its Subsidiaries, and the direct and indirect holders of Equity Interests in the Borrower that would be payable or reserved against and any additional costs that would be incurred as a result of a repatriation, whether or not a repatriation actually occurs) by the Borrower to the repayment of the Term Loans pursuant to this Section 2.05 and (ii) to the extent that (A) repatriation of Net Cash Proceeds of a Foreign Casualty Event is required to fund repayments under this Section 2.05 and (B) the Borrower has determined in good faith that repatriation of any of or all the Net Cash Proceeds of any Foreign Disposition or Foreign Casualty Event could reasonably be expected to have material adverse tax consequences for Pubco, the Borrower or any Restricted Subsidiary with respect to such Net Cash Proceeds, an amount equal to such Net Cash Proceeds that would be so affected will not be subject to repayment under this Section 2.05; provided, that in the case of the foregoing clause (ii), each of the Borrower and the Applicable Foreign Subsidiary shall use reasonable efforts to eliminate such tax effects in its reasonable control. For the avoidance of doubt, nothing in this Section 2.05 shall require the Borrower to cause any amounts to be repatriated to the United States (whether or not such amounts are used in or excluded from the determination of the amount of any mandatory prepayments hereunder).
(v) Except as otherwise provided in any Refinancing Amendment, Extension Amendment or any Incremental Amendment or as otherwise provided herein, (A) each prepayment of Term Loans pursuant to this Section Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or outstanding; provided that any prepayment of Term Loans with the Net Cash Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to each applicable Class of Refinanced Debt; (yB) as requested by a Borrower in the notice delivered pursuant with respect to Section 2.05(b)(vii), to any each Class or Classes of Term Loans, each prepayment pursuant to clauses (Bi) applied, with respect and (ii) of this Section 2.05(b) shall be applied to each the scheduled installments of principal thereof following the date of such Class prepayment (I) for which prepayments will be madethe first eight quarters following the Funding Date, in direct order of maturity and (II) thereafter on a manner determined at the discretion of the applicable Borrower in the applicable notice pro rata basis; and (C) each such prepayment shall be paid to the Appropriate Lenders of each Class in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) Shares of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderprepayment.
(viivi) A The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such the Borrower pursuant to clauses (i) through and (vii)(A) of this Section Section 2.05(b) not later than 11:00 a.m. at least two three Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedprepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment expected to be mademade by the Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion (but not less than all) of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (i) and Section 2.05(b)(iii(ii) of this Section 2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify ; provided, however, in no event may the principal amount proceeds of the mandatory repayment of Term Loans to any Credit Agreement Refinancing Indebtedness be rejected by such Lenderrejected. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejectedabove, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (OTG EXP, Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii[Intentionally omitted].
(ii) below, if If any member Loan Party or any of its Subsidiaries Disposes of any property or assets (including proceeds from the sale of Equity Interests in any Subsidiary of the Restricted Group makes Borrower and insurance and condemnation proceeds) (other than any Asset Disposition that results of any property or assets permitted by Sxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x) or (k)) and the aggregate Net Cash Proceeds received by the Loan Parties and such Subsidiaries in any fiscal year exceeds $2,000,000, the realization or receipt by Borrower shall immediately (subject to Sections 2.03(b) and 2.03(c)) prepay an aggregate principal amount (as may be increased as the result of any member PIK Interest) of Term Loans equal to 100% of such Net Cash Proceeds; provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.03(b)(ii), (A) at the option of the Restricted Group of Net Available Cash, Borrower (as elected by the relevant Borrowers shall cause Borrower in writing to be prepaid the Administrative Agent on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(iDisposition), on and so long as no Event of Default shall have occurred and be continuing, the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, Borrower may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case operating assets so long as within 12 months 240 days following receipt of such receiptNet Cash Proceeds, and a definitive agreement for the purchase of such assets with such proceeds shall not be required to be applied to prepay have been entered into and such purchase shall have been consummated (as certified by the Term Loans except Borrower in writing to the extent notAdministrative Agent); provided further, within 12 months of however, that any Net Cash Proceeds not subject to such receipt, definitive agreement or so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion reinvested shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) immediately applied to the prepayment of the Term Loans as set forth in this Section 2.03; and to the repurchase or prepayment of Other Applicable Indebtedness, and (B) any amount reinvested under clause (A) shall not be included in determining the amount of any required prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date2.03(b)(ii).
(iii) If Upon the incurrence or issuance by any member Loan Party or any of its Subsidiaries of any Indebtedness of the Restricted Group Incurs or issues any type referred to in clause (a) of the definition of “Indebtedness” (other than Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.02), the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount (as may be increased as the result of any PIK Interest) of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on immediately (subject to Section 2.03(c)) upon receipt thereof by any Loan Party or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceedsSubsidiary.
(iv) If any Borrower Incurs or issues any Refinancing Term Mandatory prepayments of outstanding Loans resulting in net cash proceeds (as opposed pursuant to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalfSection 2.03(b)(ii)-(iii) shall cause to be prepaid an aggregate principal amount of Term Loans applied as provided in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceedsSection 2.03(c).
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any No mandatory prepayment of Term Loans under this Section 2.03(b) shall be required with respect to be made by such Borrower the Facility until all mandatory prepayment obligations under the First Lien Credit Agreement (and any refinancing thereof consisting of Permitted Refinancing Indebtedness) have been satisfied or waived pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion terms of the applicable Facility or other conditional eventFirst Lien Credit Agreement, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify and the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, obligation under this Section 2.03(b) shall be reduced by the “Declined Proceeds”) amount of Term Loans any mandatory prepayment required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount corresponding provisions of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerFirst Lien Credit Agreement.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Second Lien Senior Secured Credit Agreement (Terremark Worldwide Inc)
Mandatory. (i) Subject If (1) the Borrower or any Restricted Subsidiary Disposes of any property or assets (other than any Disposition of any property or assets permitted by Section 7.04 (excluding dispositions permitted by Section 7.04(m), (s) (to Section 2.05(b)(iithe extent the proceeds thereof are received by Borrower or a Restricted Subsidiary) belowand (t) or (2) any Casualty Event occurs, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Borrower or such Restricted Group Subsidiary of Net Available CashProceeds in excess of $25 million, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that which is five ten (10) Business Days after the date of the realization or receipt by any member of the Borrower or such Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Proceeds an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such terminationProceeds received; provided, further, that, that if at the time that any such prepayment would be required, any the Borrower (or any member of the Restricted GroupSubsidiary) is required to offer to prepay repurchase Permitted Pari Passu Secured Refinancing Debt (or repurchase other Senior Secured any Refinancing Indebtedness in respect thereof that is secured on a pari passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition or Casualty Event (such Senior Permitted Pari Passu Secured Refinancing Debt (or any Refinancing Indebtedness in respect thereof) required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Borrower (or any Restricted Subsidiary) may apply such Net Available Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under shall be required pursuant to this Section 2.05(b)(i) with respect to such portion of such Net Proceeds that the Borrower or the relevant Restricted Subsidiary shall have reinvested or entered into a binding commitment to reinvest or otherwise determined to reinvest (as set forth in a notice from the Borrower to the Administrative Agent to be required where delivered on or prior to the amount date which is ten (10) Business Days after the date of any such prepayment would be less than receipt of the greater applicable Net Proceeds), in each case in accordance with the definition of $200,000,000 “Net Proceeds” and 3.0% of Total Assetswithin the timeframe contemplated thereby.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Loan Party or any Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment Effective Closing Date (other than, in the case of the Borrower or any Restricted Subsidiary, Indebtedness not permitted to be Incurred or issued pursuant to prohibited under Section 4.09 of Xxxxx XX7.02, other than Credit Agreement Refinancing Indebtedness), the Borrowers Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by such Borrower Loan Party or Restricted Subsidiary of such net cash proceedsNet Proceeds.
(viii) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Exposures at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that .
(iv) If, for any Excess Cash Flow Period, there shall be Excess Cash Flow, then not later than ten (10) Business Days after the date on which the Borrower is required to deliver annual financial statements pursuant to Section 6.01(a) with respect to such Excess Cash Flow Period, the Borrower shall prepay the Term Loans in an amount equal to (A) the Required ECF Percentage multiplied by the amount of Excess Cash Flow for such Excess Cash Flow Period minus (B) to the extent not be required to Cash Collateralize any L/C Obligations financed with the proceeds of the incurrence of Indebtedness having a maturity of more than twelve (12) months from the date of incurrence thereof and not previously deducted pursuant to this Section 2.05(b)(vclause (B) unlessin any prior period, after giving effect the amount of any optional prepayments of principal made by the Borrower during such Excess Cash Flow Period of (1) Term Loans (provided, that with respect to any prepayment of Term Loans below the par value thereof, the aggregate amount of such prepayment in full for purposes of this clause shall be the amount of the applicable Borrower’s cash payment in respect of such prepayment) and (2) the Revolving Credit Loans and Swing Line Loans, (to the aggregate Outstanding Amount under such Class of extent Revolving Credit Commitments exceeds are permanently reduced by the aggregate Revolving Credit Commitments of amount of, and at the time of, such Class then in effectprepayments).
(viv) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably on a pro rata basis to each then outstanding Class of Term Loans and shall be further applied within each Class of Term Loans then outstanding or (y) as requested by a Borrower in to the notice delivered pursuant to Section 2.05(b)(vii), to any Lenders of such Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders Loans in accordance with their respective Pro Rata Share Shares (or other applicable share provided by this Agreement) of each such Class provided, that any prepayment of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in Loans with the case Net Proceeds of prepayments pursuant to Section 2.05(b)(iv), such prepayment Credit Agreement Refinancing Indebtedness shall be applied in accordance with this Section 2.05(b)(vi) solely to those each applicable Classes Class (or Classes) of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and subject to clause (2vi) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by of this Section 2.05(b). Partial prepayments of the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderpursuant to this Section 2.05(b) shall be applied to the remaining scheduled amortization installments of the Term Loans required under Section 2.07(a) (other than the repayment to be made on the Maturity Date for the Term Loans) on a pro rata basis.
(viivi) A The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans (and/or Cash Collateralization of L/C Obligations) required to be made by such Borrower pursuant to clauses (i) through (viv) of this Section 2.05(b) at least two promptly, and in no event more than three (3) Business Days prior Days, following the event giving rise to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedmandatory prepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be madeprepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (i), (ii) and (iv) of this Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one (1) Business Day after prior to the proposed date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will Borrower and/or applied for any purpose not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required otherwise prohibited by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupAgreement.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) belowIn the event, if and on each occasion, that any member Net Cash Proceeds are received by or on behalf of the Restricted Group makes Borrower or any Asset Disposition that results of its Subsidiaries in the realization or receipt by respect of any member of the Restricted Group of Net Available CashPrepayment Event, the relevant Borrowers shall cause to be prepaid on or prior to the date that is Borrower shall, within five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash Proceeds are received (or, in the event case of a Prepayment Event described in clause (b) of the definition of the term “Prepayment Event”, on or before the next succeeding Business Day following the occurrence of such Prepayment Event), prepay Revolving Credit Loans in an aggregate amount equal to 100% of the amount of such Net Available Cash which may Proceeds (such mandatory prepayments to be reinvested applied as set forth below in clause (ii) below); provided that, in the case of any event described in clause (a) of the definition of the term “Prepayment Event”, so long as no Default shall have occurred and be continuing and notice of the intent to utilize the reinvestment provisions of this Section 2.05(b)(i), on proviso is provided to the Administrative Agent prior to the date such reinvestment period expires)prepayment would otherwise be required to be made, subject if the Borrower and/or any of its Subsidiaries invests (or commits to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (Ainvest) the Net Available Cash Proceeds from such Asset Disposition and event (Bor a portion thereof) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis within 365 days after taking into account such Asset Dispositions and prepayments (but ignoring receipt of such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all Proceeds in assets used or any portion of the Net Available Cash received in connection with an Asset Disposition may be used useful in the business of the Restricted GroupBorrower and its Subsidiaries, including then no prepayment shall be required pursuant to make acquisitions, investments, capital expenditures or operational expenditures, this paragraph in each case within 12 months respect of such receiptNet Cash Proceeds from such Prepayment Event (or the applicable portion of such Net Cash Proceeds, and such proceeds shall not be if applicable, with any balance required to be applied utilized to prepay the Term Loans in accordance with this provision) except to the extent not, within 12 months of any such Net Cash Proceeds therefrom that have not been so invested (or committed to be invested) by the end of such receipt, so used 365-day period (or contractually if committed to be so used (it being understood that if any portion invested within such 365-day period, have not been so invested within 18 months after the date of receipt of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)Net Cash Proceeds), then such remaining portion at which time a prepayment shall be required in an amount equal to prepay the such Net Cash Proceeds that have not been so invested.
(ii) Each prepayment of Revolving Credit Loans (pursuant to Section 2.05(b)(i) shall be applied to the extent otherwise required by Revolving Credit Facility (without permanent reduction of the Commitments except as provided in Section 2.06(a)(ii)) in the manner set forth in clause (iv) of this Section 2.05(b)(i2.05(b)), as of .
(iii) If (A) the date or such termination; provided, further, that, if Administrative Agent notifies the Borrower at any time during the time Relief Period that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of Revolving Credit Loans exceeds the Term Loans and Other Applicable Indebtedness Relief Period Sublimit in effect at such time; provided, furtherthen, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten two Business Days after receipt of such notice, the Borrower shall prepay Revolving Credit Loans in an aggregate amount sufficient to reduce such outstanding principal amount of Revolving Credit Loans as of such date of payment to an amount not to exceed the Relief Period Sublimit then in effect, or (B) the Administrative Agent notifies the Borrower at any time that the Total Outstandings at such rejection) be applied time exceed the Revolving Credit Facility in effect at such time, then, within two Business Days after receipt of such notice, the Borrower shall prepay Loans and/or Cash Collateralize the L/C Obligations in an aggregate amount sufficient to prepay reduce such Outstanding Amount as of such date of payment to an amount not to exceed the Term Loans Revolving Credit Facility then in accordance with the terms hereofeffect; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(iii) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Outstandings exceed the Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(viiv) Each prepayment Except as otherwise provided in Section 2.16, prepayments of Term Loans the Revolving Credit Facility made pursuant to this Section 2.05(b) ), first, shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term L/C Borrowings and the Swing Line Loans, (B) appliedsecond, with respect to each such Class for which prepayments will shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid applied ratably to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term outstanding Revolving Credit Loans, subject and, third, shall be used to Section 2.05(b)(vii). Notwithstanding clause (A) hereinaboveCash Collateralize the remaining L/C Obligations in full; and, (1) in the case of prepayments of the Revolving Credit Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through (v) of this Section 2.05(b) at least two Business Days prior to ), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such time and the Cash Collateralization of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis remaining L/C Obligations in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but full may be retained by the Borrower for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party or any Defaulting Lender that has provided Cash Collateral) to reimburse the applicable member L/C Issuer or the applicable Lenders, as applicable.
(v) Notwithstanding anything to the contrary contained in any other provision of this Section 2.05(b), to the extent any mandatory prepayment required pursuant to Section 2.05(b)(i) (without giving effect to this Section 2.05(b)(v)) is attributable to a Prepayment Event by a Foreign Subsidiary of the Restricted Group so longBorrower or an Excluded Domestic Subsidiary, but only so longno such prepayment (or a portion thereof) shall be required to be made if either (A) such prepayment (or portion thereof, as or dividend or distribution to facilitate such prepayment) shall, at the time it is required to be made, be prohibited by applicable local Requirement of Law will (including by reason of financial assistance, corporate benefit, restrictions on upstreaming or transfer of cash intra group and the fiduciary and statutory duties of the directors of relevant Subsidiaries), provided that the Borrower and its Subsidiaries shall make commercially reasonable efforts with respect to such Requirement of Law to permit such prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) in accordance therewith (it being understood that such efforts shall not permit repatriation require (x) any expenditure in excess of a nominal amount of funds or (y) modifications to the jurisdiction organizational or tax structure of the relevant Borrower and its Subsidiaries to permit such prepayment (each Borrower hereby agreeing or portion thereof, or dividend or distribution to use facilitate such prepayment)), or (B) a Restricted Payment or other distribution is reasonably necessary (notwithstanding the Loan Parties’ commercially reasonable efforts to cause make such mandatory prepayment without making such Restricted Payment or other distribution) in connection with such prepayment (or portion thereof) and the Borrower determines in good faith that the Borrower or any Subsidiary would incur a material liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution (outside of any taxes applicable member of to such Prepayment Event that both (x) are deducted in calculating the Net Cash Proceeds thereof and (y) would be incurred even if no such Restricted Group Payment or other distribution were made). Notwithstanding anything in the preceding sentence to promptly take all actions reasonably the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof, or dividend or distribution to facilitate such prepayment) required by the applicable local law to permit such repatriationunder Section 2.05(b)(i), and once the Borrower shall make such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and prepayment in an amount equal to the lesser of (x) the amount of such repatriated prepayment previously required to have been made without having given effect to such limitations or restrictions and (y) the amount of cash and Cash Equivalents on hand at such time, in each case, less the amount by which the Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to Proceeds from the Prepayment Event were previously used for the permanent repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and Indebtedness (B) to the extent that a Borrower has determined including any reductions in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Groupcommitments related thereto).
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after of the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(iclause (ii), on the date such reinvestment period expires), subject to clause (b)(vii) of this Section 2.05(b)(vii)2.05, an aggregate principal amount of Term Loans in an amount which is the lesser of (Aa) the Net Available Cash from such Asset Disposition and (Bii) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, the Borrowers may use all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(iclause (b)(ii)), as of the date or such termination; provided, further, and provided further that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted GroupSubsidiary) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, and provided further that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant set out in Section 7.02 of this Agreement was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after of receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Obligations at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower Borrowers shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower the Borrowers shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the Loans such aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b2.05(b)(A) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) shall be applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (vii) of this Section 2.05(b)(vii2.05(b). Notwithstanding clause (A) hereinaboveabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(viclause (vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (iii) through and (viii) of this Section 2.05(b) at least two (2) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (ii) and (iii) of this Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders Lender (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (Ai) to the extent that any of or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group Subsidiary is prohibited or delayed by applicable local Law law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group Subsidiary so long, but only so long, as the applicable local Law law will not permit repatriation to the jurisdiction of the relevant Borrower (each a Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (Bii) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupSubsidiary.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder Facility and declare all outstanding Borrowings, together with accrued interest and all other relevant amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, Facility will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is Within five Business Days after the realization or date of receipt by the Borrower or any member of the Restricted Group of such Net Available Cash its Subsidiaries (other than a Project Finance Subsidiary) (or, in the event case of Net Available Cash which may be reinvested as set forth below a non-wholly-owned Subsidiary, the pro rata share attributable to the Borrower's (direct or indirect) percentage interest in this Section 2.05(b)(i)such Subsidiary) of any of the following amounts, on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate Borrower shall prepay the outstanding principal amount amounts of Term Loans in the Advances comprising part of the same Borrowing by an amount which is equal to the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured received:
(i) Net Leverage Ratio does not exceed 5.00 to 1.00 Cash Proceeds from a Reduction Event;
(on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such ii) Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used Proceeds remaining in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures Shared Collateral Account or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except released to the extent not, within 12 months Borrower or one of such receipt, so used or contractually committed to be so used (it being understood that if any portion its Subsidiaries therefrom after prepayment of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from "Advances" under and as defined in the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness Master LC Facility pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such timeMaster LC Facility; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.and
(iii) Net Cash Proceeds of insurance received by the Borrower or any of its Subsidiaries in respect of asbestos or silica claims. If any member this subsection (b) would otherwise require prepayment of the Restricted Group Incurs Eurodollar Rate Advances or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or portions thereof prior to the date that is five Business Days after receipt by such member last day of the Restricted Group then current Interest Period therefore, each such prepayment may, if the Borrower so elects and unless the Agent otherwise notifies the Borrower upon the instructions of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed the Required Banks, be deferred to such Refinancing Term Loans arising out last day of an exchange of existing Term Loans for such Refinancing Term Loans)the related Interest Period. The Borrower shall, such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion been required but for the provisions of the applicable Facility or other conditional eventpreceding sentence, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify deposit the date of such amounts that would have been required as a prepayment to an account under the sole dominion and provide a reasonably detailed calculation control of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amountsAgent, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of Agent shall distribute such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis funds in accordance with Section 2.11 on the amounts of the Term Loans last day of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerInterest Period.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Senior Unsecured Credit Facility Agreement (Halliburton Co)
Mandatory. The Aggregate Revolving Commitment shall be automatically and immediately reduced without notice to the Borrower or any other Credit Party:
(i) Subject to Section 2.05(b)(ii) below, if any member of on such date and by the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be prepayment required to be made under any of Sections 2.06(b), (c), (d), (e) or (f) (without duplication) that is applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Revolving Loans in accordance with the terms hereofof Section 2.06, provided that, notwithstanding the foregoing, so long as there exists no Default at such time, no such reduction in the Aggregate Revolving Commitment will be made with respect to any prepayment required to be made under Section 2.06(f), (ii) on such date that any prepayment is required to be made under any of Sections 2.06(b), (c), (d), (e) or (f) and the prepayment Outstanding Amount of the Term B Loans and is zero (or has been reduced to zero by such prepayment), such reduction in the repurchase or prepayment of Other Applicable Indebtedness, and the Aggregate Revolving Commitment to be in such amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; providedNet Cash Proceeds, furtherNet Debt Proceeds, Net Issuance Proceeds and/or Extraordinary Receipts, as applicable, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be are not applied to prepay the Term B Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment but would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above have been if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line such Term B Loans and L/C Obligations, was in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments excess of such Class then in effectproceeds, provided that, notwithstanding the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under foregoing, so long as there exists no Default at such Class of Revolving Credit Commitments in an aggregate amount equal to time, no such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower reduction in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, Aggregate Revolving Commitment will be made with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such any prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this under Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation2.06(f), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets[Intentionally Omitted].
(ii) Notwithstanding anything in this Agreement to (A) After the contraryTriggering Event, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If Borrower or any member Restricted Subsidiary realizes or receives any Net Cash Proceeds in respect of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAsset Disposition Event, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom then on or prior to the date which is five ten (10) Business Days after the date of the realization or receipt by such Borrower of such net cash proceeds.
Net Cash Proceeds (vor such longer period, not exceeding 60 days, as shall be necessary to comply with Section 2.05(b)(iv) If for any reason below) the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments Borrower shall apply a percentage of such Class then Net Cash Proceeds set forth below to the prepayment (in effectcompliance with Section 2.05(b)(iv) below) of the Loans and, to the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or extent provided in Section 2.05(b)(iv), Pari Passu Indebtedness. The percentage of Net Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments Proceeds to be so applied will equal the percentage set forth in an aggregate amount equal the table below (with Total Leverage Ratios measured after giving Pro Forma Effect to such excessAsset Disposition Event and such prepayment) of all such Net Cash Proceeds realized or received; provided that no such Borrower prepayment shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(ii)(A) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each any such Class for which prepayments will be madeportion 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 either (a) to make a Permitted Reinvestment or (b) to make a payment on Secured Indebtedness, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders each case, in accordance with their respective Pro Rata Share Section 2.05(b)(ii)(B) (or other applicable share which notice may only be provided by this Agreement) if no Event of each such Class of Term Loans, subject to Section 2.05(b)(viiDefault has occurred and is then continuing). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), ; provided further that no such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all a Restricted Subsidiary is prohibited from making such a prepayment by the terms of the Net Available Cash of Existing Credit Agreement, the Senior Unsecured Notes, and any Asset Disposition by a member Permitted Refinancing of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction foregoing; provided further, that for purposes of the relevant Borrowertable below, if a Financial Statement Delivery Default shall exist at the applicable time of measurement, the portion of such Net Available Cash so affected will not Total Leverage Ratio shall be required deemed to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount greater than 6.00:1. Greater than 6.00:1 100 % Less than or equal to such repatriated Net Available Cash will be promptly (6.00:1 and in any event not later greater than five Business Days after such repatriation) applied (net of additional Taxes payable 5.00:1 50 % Less than or reserved against as a result thereof) equal to the repayment of the Term Loans pursuant 5.00:1 and greater than 4.50:1 25 % Less than or equal to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.4.50:1 0 %
Appears in 1 contract
Samples: Credit Agreement (Targa Resources Investments Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowThe Commitment Amount shall, if any member of on the Restricted Group makes any Asset Disposition that results in second Business Day following the realization or receipt by the Parent or any member of its Subsidiaries of any Net Disposition Proceeds, Net Equity Proceeds, Net Issuance Proceeds or Casualty Proceeds, as the Restricted Group of Net Available Cashcase may be, the relevant Borrowers shall cause be reduced by an aggregate amount equal to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group 100% of such Net Available Cash Disposition Proceeds, 50% of such Net Equity Proceeds, 100% of such Net Issuance Proceeds or 100% of such Casualty Proceeds, as the case may be; provided, however, that, so long as a Default has not occurred and is not then continuing, the Commitment Amount shall not be reduced by
(or, in a) the event amount of Net Available Cash which may be reinvested as set forth below Disposition Proceeds received by the Parent or such Subsidiary in this Section 2.05(b)(i), on any Fiscal Year (commencing with the date 2003 Fiscal Year) to the extent (x) such reinvestment period expires), subject proceeds are applied to Section 2.05(b)(vii), an aggregate principal amount the acquisition or construction of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as property or assets to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted GroupBorrowers and their Subsidiaries within 360 days following the receipt thereof and (y) such property and assets (other than such property and assets so acquired or constructed in any Fiscal Year that have an aggregate fair market value not exceeding $1,000,000) are subject to a perfected, including first priority Lien in favor of the Administrative Agent, subject only to make acquisitionsLiens permitted by clauses (k), investments(l), capital expenditures or operational expenditures(m) and (o) of Section 8.2.3; provided further, in each case within 12 months of such receipthowever, and such proceeds that Net Disposition Proceeds exceeding $2,500,000 from a single transaction shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as reduction of the date or such termination; provided, further, that, Commitment Amount if at (i) the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify Parent notifies the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date thirtieth day following the receipt of such Xxxxxx’s Net Disposition Proceeds of the Parent's or such Subsidiary's good faith intention to apply such Net Disposition Proceeds to such replacement, acquisition or construction (and describes in reasonable written detail such proposed application no later than the sixtieth day following the receipt of such Net Disposition Proceeds) within 360 days following the receipt of such Net Disposition Proceeds and (ii) the Parent or such Subsidiary in fact uses such Net Disposition Proceeds as specified in such notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within 360 days following the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion receipt of such Net Available Cash so affected will not be required to be Disposition Proceeds; and
(b) the amount of any Casualty Proceeds received by the Parent or such Subsidiary that are applied to repay Term Loans at the times rebuilding or replacement of the property or assets which were the source of such Casualty Proceeds within 360 days following the occurrence of such Casualty Event or such longer period as may otherwise be provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) Mortgage with respect to such Net Available Cash, property or assets. Each such Net Available Cash so affected will not reduction in the Commitment Amount shall be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Grouppermanent and automatic.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Mandatory. (i) Subject If (x) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets pursuant to Section 2.05(b)(ii7.05(i) belowor (j), if or (y) any member of the Restricted Group makes any Asset Disposition that Casualty Event occurs, which results in the realization or receipt by any member of the Borrower or Restricted Group Subsidiary of Net Available CashProceeds, the relevant Borrowers Borrower shall cause to be offered to be prepaid in accordance with clause (vii) below, on or prior to the date that which is five ten (10) Business Days after the date of the realization or receipt by the Borrower or any member of the Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Proceeds an aggregate principal amount of Term Loans in an amount which is equal to 100% of all Net Proceeds received (the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)“Applicable Proceeds”); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any the Borrower (or any member of the Restricted Group) is required to offer to prepay repurchase Incremental Equivalent First Lien Debt, Credit Agreement Refinancing Indebtedness or repurchase Permitted Ratio Debt that is secured on a pari passu basis with the Obligations, the Secured High Yield Notes or any other Senior Secured Indebtedness outstanding at such time that is secured by a Lien ranking pari passu with the Obligations pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition or Casualty Event (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Borrower may apply such Net Available Cash Applicable Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); providedprovided , further, further that (A) the portion of such net proceeds the Applicable Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Applicable Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to If the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment and Restatement Effective Date (other than Indebtedness not permitted prohibited under Section 7.03 (other than Indebtedness that is intended to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXconstitute Credit Agreement Refinancing Indebtedness)), the Borrowers Borrower shall cause to be offered to be prepaid in accordance with clause (vii) below an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Borrower Restricted Subsidiary of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excessNet Proceeds; provided that if at the time that any such prepayment would be required, the Borrower is required to offer to repurchase any Other Applicable Indebtedness with the Net Proceeds of such Indebtedness, then the Borrower may apply such Net Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such Net Proceeds allocated to the Other Applicable Indebtedness shall not be exceed the amount of such Net Proceeds required to Cash Collateralize any L/C Obligations be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such Net Proceeds shall be allocated to the Loans in accordance with the terms hereof to the prepayment of the Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Loans that would have otherwise been required pursuant to this Section 2.05(b)(v2.05(b)(ii) unless, after giving effect shall be reduced accordingly and (B) to the prepayment extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in full any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Loans in accordance with the terms hereof. If Holdings, the Borrower or any other Loan Party incurs any Credit Agreement Refinancing Indebtedness, the Net Proceeds of such Credit Agreement Refinancing Indebtedness shall be used pursuant to clause (iv) of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effectdefinition thereof.
(viiii) Each Except with respect to Loans incurred in connection with any Refinancing Amendment, Loan Extension Request or any Incremental Amendment (which may be prepaid on a less than pro-rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be applied as between series, Classes or tranches of Loans then outstanding as directed by the Borrower (Aprovided that (i) any prepayment of Loans with the Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied either solely to each applicable Class of Refinanced Debt, and (xii) ratably any Class of Incremental Loans may specify that one or more other Classes of Loans and Incremental Loans may be prepaid prior to such Class of Incremental Loans); (B) with respect to each Class of Term Loans then outstanding or Loans, each prepayment pursuant to clauses
(yi) as requested by a Borrower in through (iv) of this Section 2.05(b) shall be applied to the notice delivered scheduled installments of principal thereof following the date of prepayment pursuant to Section 2.05(b)(vii), to any Class 2.07 in direct order of maturity (without premium or Classes of Term Loans, (Bpenalty) applied, with respect to each such Class for which prepayments will be made, in a manner determined at unless otherwise directed by the discretion of the applicable Borrower in the applicable notice Borrower; and (C) each such prepayment shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) Shares of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderprepayment.
(viiiv) A The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (viv) of this Section 2.05(b) at least two four (4) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedprepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be madeprepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii[Intentionally Omitted].
(ii) below, if In the event and on each occasion that any member Net Cash Proceeds are received by or on behalf of the Restricted Group makes Borrower or any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available CashDomestic Subsidiary, the relevant Borrowers shall cause to be prepaid on or prior to the date that is Borrower shall, within five Business Days after such Net Cash Proceeds are received, pay or cause to be paid to the realization or receipt by any member Administrative Agent for the account of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Lender Parties an aggregate principal amount of Term Loans the Advances comprising part of the same Borrowings and deposit an amount in the L/C Cash Collateral Account, in the case of the Revolving Credit Facility (to be applied in accordance with Section 2.07(b)(v)), in an aggregate amount which is equal to 100% of such Net Cash Proceeds, provided that, in the lesser case of any event described in clause (Aa) or (c) of the definition of “Net Cash Proceeds”, if the Borrower or any Subsidiary applies the Net Available Cash Proceeds from such Asset Disposition event (or a portion thereof) (i) within 365 days after receipt of such Net Cash Proceeds and (Bii) an amount so as at a time when no Default has occurred and is continuing, to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 acquire real property, equipment or other tangible assets to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted GroupBorrower and the Subsidiaries (provided that, including the Borrower has delivered to make acquisitionsthe Administrative Agent within five Business Days after such Net Cash Proceeds are received a certificate of a Responsible Officer stating its intention to do so and certifying that no Default has occurred and is continuing), investments, capital expenditures or operational expenditures, then no prepayment shall be required pursuant to this paragraph in each case within 12 months respect of the Net Cash Proceeds in respect of such receiptevent (or the portion of such Net Cash Proceeds specified in such certificate, and such proceeds shall not be required to be applied to prepay the Term Loans if applicable) except to the extent not, within 12 months of any such receipt, Net Cash Proceeds that have not been so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from applied by the end of such 12 month period 365 days (or, if committed during such 365 days to be so applied, within 90 days of the “Reinvestment End Date”)end of such 365 days), then such remaining portion at which time a prepayment shall be required in an amount equal to prepay the Loans (such Net Cash Proceeds that have not been so applied. Each such prepayment shall be applied first to the extent otherwise required by this Section 2.05(b)(i)), as installments of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant Term Facility pro rata and second to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition Revolving Credit Facility as set forth in clause (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereofv) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Datebelow.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXThe Borrower shall, the Borrowers shall cause to be prepaid on each Business Day, prepay an aggregate principal amount of Term Loans the Revolving Credit Advances comprising part of the same Borrowings, the Letter of Credit Advances and the Swing Line Advances and deposit an amount in the L/C Cash Collateral Account in an amount equal to 100% the amount by which (A) the sum of the aggregate principal amount of (x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the Swing Line Advances then outstanding plus the aggregate Available Amount of all net cash proceeds received therefrom Letters of Credit then outstanding exceeds (B) the Revolving Credit Facility on or prior to the date that is five such Business Days after receipt by such member of the Restricted Group of such net cash proceedsDay.
(iv) If any The Borrower Incurs or issues any Refinancing Term Loans resulting shall, on each Business Day, pay to the Administrative Agent for deposit in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in L/C Cash Collateral Account an amount sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral Account to equal to 100% the amount by which the aggregate Available Amount of all net cash proceeds received therefrom Letters of Credit then outstanding exceeds the Letter of Credit Facility on or prior to the date which is five such Business Days after the receipt by such Borrower of such net cash proceedsDay.
(v) If for any reason Prepayments of the aggregate Outstanding Amount of Revolving Credit LoansFacility made pursuant to clause (ii) or (iii) above shall be first applied to prepay Letter of Credit Advances then outstanding until such Advances are paid in full, second applied to prepay Swing Line Loans Advances then outstanding until such Advances are paid in full, third applied to prepay Revolving Credit Advances then outstanding comprising part of the same Borrowings until such Advances are paid in full and fourth deposited in the L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required Collateral Account to Cash Collateralize any L/C Obligations the Available Amount of the Letters of Credit then outstanding; and, in the case of prepayments of the Revolving Credit Facility required pursuant to this Section 2.05(b)(vclause (ii) unlessabove, the amount remaining (if any) after giving effect to the prepayment in full of the applicable Advances then outstanding and the Cash Collateralization of the aggregate Available Amount of Letters of Credit then outstanding (the sum of such prepayment amounts in respect of Revolving Credit Loans Advances, Letter of Credit Advances and Swing Line LoansAdvances, Cash Collateralization amounts and remaining amount being referred to herein as the aggregate Outstanding Amount under such Class of “Revolving Reduction Amount”) may be retained by the Borrower and the Revolving Credit Commitments exceeds Facility shall be permanently reduced as set forth in Section 2.06(b)(iv). Upon the aggregate drawing of any Letter of Credit for which funds are on deposit in the L/C Cash Collateral Account, such funds shall be applied to reimburse the relevant Issuing Bank or Revolving Credit Commitments of such Class then in effectLenders, as applicable.
(vi) Each prepayment of Term Loans pursuant to All prepayments under this Section 2.05(bsubsection (b) shall be (A) applied either (x) ratably to each Class made together with accrued interest and Letter of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior Credit Fees to the date of such prepayment (unless otherwise agreed by on the Administrative Agent); provided thatprincipal amount prepaid, subject to the payment when due of together with any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent10.04(c). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Neustar Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after 95007615_1 the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that that, at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or rescission) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Term Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 100.0 million and 3.05.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date[Reserved].
(iii) If (A) prior to the SPV Structure Termination Date, any Loan Party or any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 2021 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such Loan Party or member of the Restricted Group, as applicable, of such net cash proceeds and (B) on or after the SPV Structure Termination Date, any member of the Restricted Group Incurs or issues any Indebtedness after the 2021 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Annex IV, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on a date that is five Business Days from receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any 95007615_1 time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement Agreement, Extension Amendment or Extension Amendment, may provide Refinancing Amendment (including on an optional basis as elected by the Borrower) for a less than ratable application that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans established thereunderwithout at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share (or other applicable share provided by this Agreement) of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share (or other applicable share provided by this Agreement) of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share (or 95007615_1 other applicable share provided by this Agreement) of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a any Permitted Affiliate Parent, as applicable, Parent shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Companyapplicable Borrower, cancel each Facility, and the Commitments thereunder thereunder, and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Additional Facility Joinder Agreement (Liberty Latin America Ltd.)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member At the end of the Restricted Group makes any Asset Disposition that results in --------- (-----) Year after the realization or receipt by any member Effective Date hereof, CONTRACTOR shall relinquish to the GOVERNMENT not less than twenty five percent (25%) of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), original Area on the Effective date such reinvestment period expiresnot then converted into a Development Lease (s), " Area subject to Section 2.05(b)(vii), an aggregate principal amount relinquish. Such relinquishment shall be in a single unit of Term Loans in an amount which is the lesser whole Exploration Blocks or originally existing parts of (AExploration Blocks not converted into Development Lease(s) the Net Available Cash from such Asset Disposition unless otherwise agreed upon between GANOPE and (B) an amount CONTRACTOR so as to ensure that enable the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required relinquishment requirements to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be usedprecisely fulfilled, then if such proceeds are not so used within 180 days from relinquish the remaining Area at the end of the last Exploration phase except the areas converted to development lease(s). Contractor may retain the " Area subject to relinquish" in any Exploration phase Subject to the approval of the Minister of Petroleum by submitting at least six (6) months pre- notification to GANOPE, including the additional technical activities to be undertaken in the " Area subject to relinquish" during the next exploration period of years which CONTRACTOR elects to extend after the initial exploration period provided that CONTRACTOR shall submit a statement of costs and expenses of such 12 month additional activities, It is understood that CONTRACTOR is committed to such financial and technical commitments in addition to the Exploration commitments related to the second --------------- (---) Exploration period according to Article IV (the “Reinvestment End Date”)), then such remaining portion b) ,provisions of Article IV of this Agreement shall be required to prepay the Loans (applied, provided that CONTRACTOR shall submit a letter of guarantee with an equal amount to the extent otherwise required by costs of such additional activities, according to annex ( c) of this Section 2.05(b)(i)), as agreement and shall also pay an unrecoverable bonus for retaining "the Area subject to relinquish". At the end of the date or such termination; provided---------- (------) year after the Effective Date hereof, further, that, if at CONTRACTOR shall relinquish to the time that any such prepayment would be required, any Borrower GOVERNMENT an additional --------------- percent (or any member --------%) of the Restricted Group) is required original Area on the Effective date not then converted to offer a Development Lease(s). CONTRACTOR shall also relinquish the "Area subject to prepay or repurchase other Senior Secured Indebtedness relinquish" retained pursuant to the terms of above mentioned paragraph, excluding the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required area(s) converted to be offered to be so repurchased, “Other Applicable Indebtedness”Development Lease(s), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds . Such relinquishment shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion single unit of the applicable Borrower in the applicable notice and (Cwhole Exploration Blocks not converted to Development Lease(s) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by upon between GANOPE and CONTRACTOR so as to enable the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment relinquishment requirements to be madeprecisely fulfilled. The Administrative Agent will promptly notify each Appropriate Lender of CONTRACTOR may retain the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of mentioned additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.--------------- percent ( -------
Appears in 1 contract
Samples: Concession Agreement
Mandatory. The Aggregate Revolving Commitment shall be automatically and immediately reduced without notice to the Borrower or any other Credit Party:
(i) Subject to Section 2.05(b)(ii) below, if any member of on such date and by the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be prepayment required to be made under any of Sections 2.06(b), (c), (d), (e) or (f) (without duplication) that is applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Revolving Loans in accordance with the terms hereofof Section 2.06, provided that, notwithstanding the foregoing, so long as there exists no Default at such time, no such reduction in the Aggregate Revolving Commitment will be made with respect to any prepayment required to be made under Section 2.06(e)(ii) or Section 2.06(f),
(ii) on such date that any prepayment is required to be made under any of Sections 2.06(b), (c), (d), (e) or (f) and the prepayment Outstanding Amount of the Term B Loans and is zero (or has been reduced to zero by such prepayment), such reduction in the repurchase or prepayment of Other Applicable Indebtedness, and the Aggregate Revolving Commitment to be in such amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; providedNet Cash Proceeds, furtherNet Debt Proceeds, Net Issuance Proceeds and/or Extraordinary Receipts, as applicable, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be are not applied to prepay the Term B Loans but would have been if the Outstanding Amount of such Term B Loans was in accordance with excess of such proceeds, provided that, notwithstanding the terms hereof; providedforegoing, furtherso long as there exists no Default at such time, however, that no such prepayment under this Section 2.05(b)(i) shall be required where reduction in the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower Aggregate Revolving Commitment will be made with respect to any prepayment required to make or cause to be made any prepayment pursuant to under Section 2.05(b)(i2.06(e)(ii) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.or Section 2.06(f), and
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, if after giving effect to any reduction or termination of Aggregate Revolving Commitment under this Section 2.04 the prepayment in full Letter of Credit Sublimit exceeds the applicable Aggregate Revolving Credit Loans and Swing Line LoansCommitment at such time, the aggregate Outstanding Amount under such Class Letter of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) Sublimit shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected automatically reduced by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerexcess.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If for any member of reason the Restricted Group makes Total Revolving Outstandings at any Asset Disposition that results in time exceed the realization or receipt by any member of the Restricted Group of Net Available CashRevolving Facility at such time, the relevant Borrowers shall cause immediately prepay Revolving 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 be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group 103% of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans excess or otherwise in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on and/or in a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except manner reasonably acceptable to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assetsapplicable L/C Issuer.
(ii) Notwithstanding anything in Prepayments of the Revolving Facility made pursuant to this Agreement Section 2.04(b), first, shall be applied ratably to the contraryL/C Borrowings, no Borrower will second, shall be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior applied ratably to the Reinvestment End Dateoutstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from any Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Lenders, as applicable.
(iii) If any after the Closing Date a member of the Restricted Borrower Group Incurs conveys, sells, leases (including via sublease), transfers or issues otherwise disposes of (1)(A) its direct or indirect beneficial ownership interests in any Indebtedness Designated Property Operating Entity or (B) all or substantially all of the assets of a Designated Property Operating Entity or (2)(A) its direct or indirect beneficial ownership interests in any Non-Designated Property Operating Entity or (B) all or substantially all of the assets of a Non-Designated Property Operating Entity, in each case whether in a single transaction or a related series of transactions (any such conveyance, sale, lease, transfer or other disposition described in clause (1) or (2), a “Specified Disposition”), then within ten (10) Business Days (subject to extension as needed to obtain any required Gaming Approvals or to comply with any applicable Gaming Laws) after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 date of Xxxxx XXreceipt of the Net Available Proceeds from such Specified Disposition by the Borrower Group, (x) in the case of a Specified Disposition described in clause (1) above, the Borrowers Revolving Commitments shall cause to be prepaid an aggregate principal amount of Term Loans permanently reduced in an amount (and, solely to the extent then outstanding, the Revolving Loans shall be repaid in a corresponding amount) equal to 100% of all net cash proceeds the Net Available Proceeds of any such Specified Disposition received therefrom on or prior by the Borrower Group and (y) in the case of a Specified Disposition described clause (2) above, solely to the date that is five extent then outstanding, the Revolving Loans shall be repaid in an amount (and, for the avoidance of doubt, the Revolving Commitments shall not be reduced) equal to 100% of the Net Available Proceeds of any such Specified Disposition in excess of the greater of (A) $100.0 million and (B) 5.0% of Borrower Group EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) received by the Borrower Group; provided that, solely with respect to a Specified Disposition described in clause (2) above, at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent within ten Business Days after following the date of receipt of such Net Available Proceeds of such Specified Disposition), the Borrower Group may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the business of the Borrower Group (including by way of merger or Investment) (i) within 365 days following the date of receipt of such Net Available Proceeds of such Specified Disposition or (ii) if a member of the Restricted Borrower Group enters into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (i), within 180 days after the end of such net cash proceeds365-day period; provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower Group determines not to reinvest the Net Available Proceeds from such Specified Disposition as set forth above) shall be immediately applied to the prepayment of the Revolving Loans (solely to the extent then-outstanding) as set forth in this Section 2.04(b)(iii). For the avoidance of doubt, the MGM Mirage Disposition Transaction shall not constitute a Specified Disposition and the Borrower Group shall not be required to make any mandatory prepayment or commitment reduction in connection therewith.
(iv) If Within ten days after the receipt by any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out Restricted Subsidiary of an exchange of existing Term Loans for such Refinancing Term Loans)any Net Available Proceeds from any Debt Issuance, such Borrower (or the Company on its behalf) Revolving Commitments shall cause to be prepaid an aggregate principal amount of Term Loans permanently reduced in an amount (and, solely to the extent then outstanding, the Revolving Loans shall be repaid in a corresponding amount) equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by Net Available Proceeds of any such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii)Debt Issuance. Notwithstanding clause (A) hereinabovethe foregoing, (1) in the case each Revolving Lender may reject all of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing its pro rata share of any mandatory prepayment of Term Revolving Loans (and, in the case of a Specified Disposition described in Section 2.04(b)(iii)(1), a permanent reduction of its Revolving Commitment) required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in2.04(b)(iii) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower Company no later than 5:00 p.m. one (New York City time) on the Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such mandatory prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term LoansRevolving Loans (and, in the case of a Specified Disposition described in Section 2.04(b)(iii)(1), a permanent reduction of its Revolving Commitment) to which such Lender is otherwise entitled. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If for any member of reason the Restricted Group makes Total Outstandings at any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or time prior to the date that is five Business Days after Revolver Maturity Date exceeds the realization or receipt by any member of Aggregate Commitments then in effect, the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Borrowers shall immediately prepay Revolving Loans in an aggregate amount which is the lesser of (A) the Net Available Cash from equal to such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assetsexcess.
(ii) Notwithstanding anything in this Agreement to Upon the contrary, no Borrower will be required to make or cause to be made issuance and sale by the REIT of any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXits Equity Interests, the Borrowers REIT shall cause to be prepaid an aggregate principal amount of Term prepay the Loans in an amount equal to 100% of the Net Cash Proceeds received by the REIT in respect thereof; provided, however, that so long as no Default or Event of Default shall have occurred and be continuing, the REIT may use all net cash proceeds received therefrom on or prior a portion of such Net Cash Proceeds to (A) pay operating expenses of the Loan Parties due and payable at the time of, or anticipated to become due and payable within sixty (60) days of, such sale or issuance of its Equity Interests and/or (B) make dividends or other distributions in an amount not to exceed the amount required for the REIT to eliminate 110% of its taxable income at the time of such sale or issuance of its Equity Interests or otherwise required for the REIT to maintain its tax status as a real estate investment trust, in the case of each of clauses (A) and (B), so long as (x) the REIT delivers to the date that is five Business Days after receipt Administrative Agent a certificate signed by such member a Responsible Officer of the Restricted Group REIT certifying the amount of such net cash proceedsNet Cash Proceeds permitted to be used for the purposes set forth in clauses (A) and (B), together with a detailed calculation thereof and (y) such Net Cash Proceeds are used for such purposes within sixty (60) days after the date of such sale or issuance of its Equity Interests.
(iviii) If Upon receipt by any Borrower Incurs or issues Loan Party of any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of Net Cash Proceeds from an exchange of existing Term Loans for such Refinancing Term Loans)Investment Asset Payment, such Borrower (or the Company on its behalf) Borrowers shall cause to be prepaid an aggregate principal amount of Term prepay the Loans in an amount equal to 100% of all net cash proceeds received therefrom on such Net Cash Proceeds; provided, however, that so long as no Default or prior to the date which is five Business Days after the receipt by such Borrower Event of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans Default shall have occurred and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectbe continuing, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, REIT may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject use all or a portion of such Net Cash Proceeds to (A) pay operating expenses of the Loan Parties due and payable at the time of, or anticipated to become due and payable within one hundred-twenty (120) days of, such Investment Asset Payment and/or (B) make dividends or other distributions in an amount not to exceed the amount required for the REIT to eliminate 110% of its Pro Rata Share taxable income at the time of any mandatory prepayment such Investment Asset Payment or otherwise required for the REIT to maintain its tax status as a real estate investment trust, in the case of each of clauses (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiA) and Section 2.05(b)(iii(B), so long as (x) by providing written notice (each, a “Rejection Notice”) the REIT delivers to the Administrative Agent a certificate signed by a Responsible Officer of the REIT certifying the amount of such Net Cash Proceeds permitted to be used for the purposes set forth in clauses (A) and the applicable Borrower no later than 5:00 p.m. (B) together with a detailed calculation thereof and (y) such Net Cash Proceeds are used for such purposes within one Business Day hundred-twenty (120) days after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerInvestment Asset Payment.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject If Holdings, the Borrower or any of their respective Restricted Subsidiaries Disposes of any property or any Casualty or Condemnation occurs with respect to any of their property (other than any Disposition of, or Casualty or Condemnation with respect to, any ABL Priority Collateral) pursuant to Section 2.05(b)(ii7.05(xii), (xvi), (xvii), (xix) below, if any member of the Restricted Group makes any Asset Disposition that or (xxi) which results in the realization by such Person of aggregate Net Cash Proceeds in excess of (x) $10,000,000 for a single event or receipt by series of related events or (y) $25,000,000 in any member of the Restricted Group of Net Available Cashfiscal year, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)Proceeds within three Business Days after receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii) below); provided that provided, however, that, at the option election of the BorrowersBorrower (as notified by the Borrower in writing to the Administrative Agent upon such Disposition or Casualty or Condemnation), and so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, Holdings, the Borrower or such Restricted Subsidiary, as applicable, may reinvest all or any portion of such Net Cash Proceeds in operating assets useful in their business so long as within 365 days after the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months receipt of such receiptNet Cash Proceeds, and such proceeds reinvestment shall not be required to be applied to prepay have been consummated or Holdings, the Term Loans except Borrower or such Restricted Subsidiary, as applicable, shall have entered into a binding agreement for such reinvestment (as certified by the Borrower in writing to the extent notAdministrative Agent); and provided further, within 12 months of such receipthowever, so used or contractually committed that an amount equal to be so used (it being understood that if any portion of such proceeds is Net Cash Proceeds not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from reinvested at the end of such 12 month 365-day period (or, if subject to such binding agreement at the “Reinvestment End Date”))end of such 365-day period, then not so reinvested within 180 days after such remaining portion 365-day period) shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) immediately applied to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to as set forth in this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets2.03(b)(i).
(ii) Notwithstanding anything in this Agreement to If the contrary, no Borrower will be required to make or cause any of its Restricted Subsidiaries issues or incurs any Indebtedness (other than Indebtedness expressly permitted to be made any prepayment incurred pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior 7.02 (except to the Reinvestment End Date.
(iiiextent constituting a refinancing of any Finance Obligations) If any member and excluding proceeds of the Restricted Group Incurs Indebtedness under the ABL Credit Agreement), then on the date of such issuance or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXincurrence, the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly Proceeds simultaneously with (and in any event not later than five the third Business Days after Day following) the receipt thereof by such repatriationPerson.
(iii) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment Prepayments of the Term Loans made pursuant to this Section 2.05(b2.03(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to shall be applied to repay Term Loans the principal repayment installments thereof as directed by the Borrower in writing (and in the absence of any direction, in direct order of maturity, to the remaining quarterly principal installments thereof). Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages.
(iv) Any Lender may elect, by notice to the Administrative Agent by telephone (provided that any telephone notice must be confirmed immediately by delivery to the Administrative Agent of a notice by hand delivery or by electronic transmission) at least one (1) Business Day prior to the times provided in required prepayment date, to decline all or any portion of any mandatory prepayment of its Loan pursuant to this Section 2.05(b) 2.03(b), in which case the aggregate amount of the prepayment that would have been applied to prepay the Loans but was so declined may be retained by the applicable member of the Restricted GroupBorrower.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject If the Borrower or any of its Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Sxxxxxx 0.00(x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (x), (o) or (p) and other than any event giving rise to an Extraordinary Receipt, which shall be governed by clause (ii) of this Section 2.05(b)(ii2.05(b)) below, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds promptly, but in an amount which is any event within five Business Days, after the lesser later of (A) the Net Available Cash from receipt thereof by such Asset Disposition Person and (B) an amount so the expiration of the 30-day period provided below (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that with respect to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring any such Net Available Cash Proceeds received by or paid to or for purposes the account of determining compliance)); provided that the Borrower or any of its Subsidiaries, at the option election of the BorrowersBorrower (as notified by the Borrower to the Administrative Agent not more than 30 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case operating assets so long as within 12 months after the receipt of such receipt, and Net Cash Proceeds such proceeds reinvestment shall not be required have been completed or (y) may enter into a binding commitment to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used reinvest all or contractually committed to be so used (it being understood that if any portion of such proceeds Net Cash Proceeds in operating assets so long as such binding commitment is not so used entered into within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from months after the end receipt of such 12 month period (Net Cash Proceeds and within 18 months after the “Reinvestment End Date”))receipt of such Net Cash Proceeds such reinvestment shall have been completed, then such remaining portion shall be required to prepay the Loans (and, subject to the extent otherwise required by this Section 2.05(b)(i))next succeeding proviso, as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where with respect to that portion of such Net Cash Proceeds that the amount Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any such event within five Business Days, applied to the prepayment would be less than of the greater Term Loans as set forth in this Section 2.05(b)(i). Table of $200,000,000 and 3.0% of Total Assets.Contents
(ii) Notwithstanding anything in this Agreement Upon any Extraordinary Receipt received by or paid to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member account of the Restricted Group Incurs Borrower or issues any Indebtedness after the 2020 Amendment Effective Date of its Subsidiaries, and not permitted to be Incurred otherwise included in clause (i) or issued pursuant to (iv) of this Section 4.09 of Xxxxx XX2.05(b), the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on promptly, but in any event within five Business Days, after the later of (A) receipt thereof by such Person and (B) the expiration of the 30 day period provided below (such prepayments to be applied as set forth in clauses (v) and (vi) below); provided, however, that (x) with respect to any Extraordinary Receipt received by or prior paid to or for the account of the Borrower or any of its Subsidiaries, at the election of the Borrower (as notified by the Borrower to the date Administrative Agent not more than 30 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of such Extraordinary Receipt in operating assets so long as within 12 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed or (y) may enter into a binding commitment to reinvest all or any portion of such Extraordinary Receipt in operating assets so long as such binding commitment is entered into within 12 months after the receipt of such Net Cash Proceeds and within 18 months after the receipt of such Net Cash Proceeds such reinvestment shall have been completed, and, subject to the next succeeding proviso, no prepayment under this Section 2.05(b)(ii) shall be required with respect to that is portion of such Net Cash Proceeds that the Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any event within five Business Days, applied to the prepayment of the Term Loans as set forth in this Section 2.05(b)(ii).
(iii) Within five Business Days after receipt by such member 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) (commencing with the financial statements and certificate in respect of the Restricted Group fiscal year of such net cash proceeds.
(iv) If any the Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loansending September 30, 2012), such the Borrower (or the Company on its behalf) shall cause to be prepaid prepay an aggregate principal amount of Term Loans (such prepayments to be applied as set forth in clause (v) below) equal to the excess (if any) of (A) the Applicable ECF Percentage of Excess Cash Flow, if any, for the fiscal year of the Borrower covered by such financial statements over (B) the sum of (1) the aggregate principal amount of Term Loans prepaid during such fiscal year pursuant to Section 2.05(a)(i) (and not previously applied by the Borrower in such fiscal year pursuant to the following clause (2) to reduce the prepayment required by this Section 2.05(b)(iii) for the preceding fiscal year) and (2) at the Borrower’s election, all or any amount of any prepayment of the Term Loans made pursuant to Section 2.05(a)(i) after the end of such fiscal year and on or prior to the date of such prepayment. Table of Contents
(iv) Upon the incurrence or issuance by the Borrower or any of its Subsidiaries of (x) Indebtedness pursuant to Section 7.02(n) or (y) any other Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02 (excluding Section 7.02(n))), the Borrower shall prepay an aggregate principal amount of Term Loans equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date which is promptly, but in any event within five Business Days Days, after receipt thereof by the receipt by Borrower or such Borrower of Subsidiary (such net cash proceedsprepayments to be applied as set forth in clauses (v) and (vi) below).
(v) Each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) (other than Section 2.05(b)(iv)(x)) shall be applied (i) ratably to each of the Term A Facility and the Term B Facility and (ii) within any such Term Facility, first, in direct order of maturity to the principal repayment installments thereof occurring during the 12 months following the date of such prepayment and, second, ratably to the remaining principal repayment installments of such Term Facility on a pro rata basis. Each prepayment of Term Loans pursuant to Section 2.05(b)(iv)(x) shall be applied (i) between the Term A Facility and the Term B Facility as the Borrower shall direct and (ii) within any such Term Facility, first, in direct order of maturity to the principal repayment installments thereof occurring during the 12 months following the date of such prepayment and, second, ratably to the remaining principal repayment installments of such Term Facility.
(vi) Notwithstanding any of the other provisions of clause (i), (ii) or (iv) of this Section 2.05(b), so long as no Default under Section 8.01(a) or Section 8.01(f), or any Event of Default, shall have occurred and be continuing, if, on any date on which a prepayment would otherwise be required to be made pursuant to clause (i), (ii) or (iv) of this Section 2.05(b), the aggregate amount of Net Cash Proceeds required by such clause to be applied to prepay Term Loans on such date is less than or equal to $1,000,000, the Borrower may defer such prepayment until the first date on which the aggregate amount of Net Cash Proceeds or other amounts otherwise required under clause (i), (ii) or (iv) of this Section 2.05(b) to be applied to prepay Term Loans exceeds $1,000,000. During such deferral period the Borrower may apply all or any part of such aggregate amount to prepay Revolving Credit Loans and may, subject to the fulfillment of the applicable conditions set forth in Article IV, reborrow such amounts (which amounts, to the extent originally constituting Net Cash Proceeds, shall be deemed to retain their original character as Net Cash Proceeds when so reborrowed) for application as required by this Section 2.05(b). Upon the occurrence of a Default under Section 8.01(a) or Section 8.01(f), or an Event of Default, during any such deferral period, the Borrower shall immediately prepay the Term Loans in the amount of all Net Cash Proceeds received by the Borrower and other amounts, as applicable, that are required to be applied to prepay Term Loans under this Section 2.05(b) (without giving effect to the first and second sentences of this clause (vi)) but which have not previously been so applied.
(vii) If for any reason the aggregate Outstanding Amount of 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 Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans Borrowings and Swing Line Loans and/or Cash Collateralize any such L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided that such Borrower .
(viii) Prepayments of the Revolving Credit Facility made pursuant to clause (vii) of this Section 2.05(b), first, shall not be required applied ratably to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans Borrowings and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)second, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(viratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) solely to those applicable Classes of Term Loans selected by reimburse the applicable Borrower and specified in L/C Issuer or the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate ParentRevolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.. Table of Contents
Appears in 1 contract
Samples: Credit Agreement (Ashland Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii[Reserved].
(ii) below, if If any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after of the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(iclause (ii), on the date such reinvestment period expires), subject to clause (b)(vii) of this Section 2.05(b)(vii)2.05, an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (4.00:1.00 on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, the Borrowers may use all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”))period, then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(iclause (b)(ii)), as of the date or such termination; provided, further, and provided further that, if at the time that any such prepayment would be required, any Borrower the Borrowers (or any member of the Restricted GroupSubsidiary) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, provided that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i2.05(b)(ii) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, and provided further that no such prepayment under this Section 2.05(b)(i2.05(b)(ii) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 100,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs incurs or issues any Indebtedness after the 2020 Amendment Effective Closing Date not permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after of receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Obligations at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower Borrowers shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower the Borrowers shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the Loans such aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) shall be applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) shall be applied, with respect to each such Class for which prepayments will be mademade (treating for this purpose, for the avoidance of doubt, the Term B-1 Loans and the Term B-2 Loans as a single class), in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) shall be paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to clause (vii) of this Section 2.05(b)(vii2.05(b). Notwithstanding clause (A) hereinaboveabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(viclause (vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), ) and (2) any Additional Facility Joinder Agreement or Extension Amendment, Amendment may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such said Borrower pursuant to clauses (iii) through and (viii) of this Section 2.05(b) at least two (2) Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be mademade by such Borrower. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(iiclauses (ii) and (iii) of this Section 2.05(b)(iii2.05(b) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such XxxxxxLender’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders Lender (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (Ai) to the extent that any of or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group Subsidiary is prohibited or delayed by applicable local Law law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group Subsidiary so long, but only so long, as the applicable local Law law will not permit repatriation to the jurisdiction of the relevant Borrower (each a Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group Subsidiary to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five (5) Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (Bii) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such a Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupSubsidiary.
(ix) Upon becoming aware of a Change of Control:Control (excluding a Change of Control upon the consummation of the Liberty Acquisition):
(A) the Company or or, after a Permitted Affiliate Group Designation Date, a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder Facility and declare all outstanding Borrowings, together with accrued interest and all other relevant amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, Facility will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(iiIf the Borrower or any 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) belowor (l)) or any Casualty Event occurs, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term Loans equal to 100% of such Net Cash Proceeds (or, if the Borrower or any of its Subsidiaries has incurred Indebtedness that is permitted under Section 7.02 that is secured, on an equal and ratable basis with the Term Loans, by a Lien on the Collateral permitted under Section 7.01, and such Indebtedness is required to be prepaid or redeemed with the net proceeds of any such Disposition or Casualty Event, then such lesser percentage of such Net Cash Proceeds such that such Indebtedness receives no greater than a ratable percentage of such Net Cash Proceeds based on the aggregate principal amount of Term Loans and such Indebtedness then outstanding) promptly, but in an amount which is any event within five Business Days, after the lesser later of (A) the Net Available Cash from receipt thereof by such Asset Disposition Person and (B) an amount so the expiration of the 5-day period provided below (such prepayments to be applied as set forth in clause (iii) and subject to ensure clauses (iv) and (v) below); provided, however, that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 with respect to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring any such Net Available Cash Proceeds received by or paid to or for purposes the account of determining compliance)); provided that the Borrower or any of its Subsidiaries, at the option election of the BorrowersBorrower (as notified by the Borrower to the Administrative Agent not more than 5 days after receiving the Net Cash Proceeds therefrom), and so long as no Default shall have occurred and be continuing, the Borrower or such Subsidiary (x) may reinvest all or any portion of the such Net Available Cash received Proceeds in connection with an Asset Disposition may be assets that are used or useful in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case Borrower and its Subsidiaries so long as within 12 months after the receipt of such receipt, and Net Cash Proceeds such proceeds reinvestment shall not be required have been completed or (y) may enter into a binding commitment to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used reinvest all or contractually committed to be so used (it being understood that if any portion of such proceeds Net Cash Proceeds in such assets so long as such binding commitment is not so used entered into within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from months after the end receipt of such 12 month period (Net Cash Proceeds and within 18 months after the “Reinvestment End Date”))receipt of such Net Cash Proceeds such reinvestment shall have been completed, then such remaining portion shall be required to prepay the Loans (and, subject to the extent otherwise required by this Section 2.05(b)(i))next succeeding proviso, as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where with respect to that portion of such Net Cash Proceeds that the amount Borrower elects to reinvest in accordance with the immediately preceding clause (x) or (y); and provided, further, however, that any Net Cash Proceeds not so applied in accordance with clause (x) or (y) of the immediately preceding proviso shall be promptly, but in any such event within five Business Days after the end of the applicable reinvestment period, applied to the prepayment would be less than of the greater of $200,000,000 and 3.0% of Total AssetsTerm Loans as set forth in this Section 2.05(b)(i).
(ii) Notwithstanding anything in this Agreement to Upon the contrary, no incurrence or issuance by the Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues its Subsidiaries of any Indebtedness after the 2020 Amendment Effective Date (x) not expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.02 or (y) that constitutes Refinancing Commitments, Refinancing Loans or Refinancing Equivalent Debt, the Borrowers Borrower shall cause to be prepaid prepay an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date that is promptly, but in any event within five Business Days Days, after receipt thereof by the Borrower or such member of the Restricted Group of Subsidiary (such net cash proceedsprepayments to be applied as set forth in clause (iii) below and subject to clause (iv) below).
(iviii) If any Borrower Incurs or issues any Refinancing Term Loans resulting Except as expressly provided in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant proviso to this Section 2.05(b)(v) unlesssentence, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each each prepayment of Term Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of the Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered other than any such prepayment pursuant to Section 2.05(b)(vii2.05(b)(ii)(y), which shall be applied to any Class the then applicable Term Loans that were the subject of such Refinancing Commitments, Refinancing Loans or Classes of Term LoansRefinancing Equivalent Debt, (Bas applicable) appliedand to the principal repayment installments thereof as directed by the Borrower; provided, with respect to each such Class for which prepayments will be madehowever, in a manner determined that, at the discretion Borrower’s election, the Net Cash Proceeds of any Disposition by, or Casualty Event involving, a Foreign Subsidiary that are required to be used to prepay the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments term loans pursuant to Section 2.05(b)(iv), such prepayment shall 2.05(b)(i) may be applied in accordance with this Section 2.05(b)(vi) solely ratably to those applicable Classes of the Term A-1 Loans selected by and the applicable Borrower and specified in Term A-2 Loans then outstanding before being applied to the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderB Loans.
(viiiv) A Borrower 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 notify the Administrative Agent in writing of have occurred and be continuing, if, on any mandatory date on which a prepayment of Term Loans would otherwise be required to be made by such Borrower pursuant to clauses clause (i) through or (vii) 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) or (ii) of this Section 2.05(b) at least two Business Days prior to be applied to prepay Term Loans exceeds $1,000,000, in which case the date prepayment amount shall be such excess over $1,000,000. During such deferral period the Borrower may apply all or any part of such prepayment (unless otherwise agreed by the Administrative Agent); provided thataggregate amount to prepay Revolving Credit Loans and may, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion fulfillment of the applicable Facility 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 other conditional eventSection 8.01(f), which refinancing or other conditional event an Event of Default, during any such deferral period, the Borrower shall not be consummated or shall otherwise be delayed. Each such notice shall specify immediately prepay the date of such prepayment and provide a reasonably detailed calculation of Term Loans in the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of all Net Cash Proceeds received by the contents of the applicable Borrower’s prepayment notice Borrower and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined other amounts, the “Declined Proceeds”) of Term Loans as applicable, that are required to be made pursuant applied to prepay Term Loans under this Section 2.05(b)(ii2.05(b) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) without giving effect to the Administrative Agent first and the applicable Borrower no later than 5:00 p.m. one Business Day after the date second sentences of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders this clause (iv)) but which have not previously been so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrowerapplied.
(viiiv) Notwithstanding any other provisions of this Section 2.052.05(b), (A) to the extent that any or all of the Net Available Cash Proceeds of any Asset Disposition by a member Foreign Subsidiary giving rise to a prepayment event pursuant to Section 2.05(b)(i) (a “Foreign Disposition”) or the Net Cash Proceeds of the Restricted Group is any Casualty Event from a Foreign Subsidiary (a “Foreign Casualty Event”) are prohibited or delayed by applicable local Law from being repatriated to the jurisdiction United States or, in the case of a prepayment of the relevant BorrowerTerm A-1 Loans or the Term A-2 Loans after the consummation of the Term Loan A Assumption, the Netherlands, the portion of such Net Available Cash Proceeds so affected will not be required to be applied to repay prepay Term Loans at the times time provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group Foreign Subsidiary so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of United States or the relevant Borrower Netherlands, as applicable (each the Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group Foreign Subsidiary to promptly take all actions reasonably required by the applicable local law Law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash Proceeds is permitted under the applicable local lawLaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash Proceeds will be promptly (and in any event not later than five two (2) Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment prepayment of the Term Loans pursuant to this Section 2.05(b) to the extent otherwise provided herein and (B) to the extent that a the Borrower has determined in good faith that repatriation of any of or all the Net Available Cash Proceeds of any such Asset Foreign Disposition or any Foreign Casualty Event would have a material adverse tax consequences (as determined in good faith by such Borrower) consequence with respect to such Net Available CashCash Proceeds, such the Net Available Cash Proceeds so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupForeign Subsidiary.
(ixvi) Upon becoming aware of a Change of Control:If for any reason the Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrower shall immediately prepay Revolving Credit Loans, L/C Borrowings and Swing Line Loans and/or Cash Collateralize such L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.
(Avii) Prepayments of the Company Revolving Credit Facility made pursuant to clause (vi) of this Section 2.05(b), first, shall be applied ratably to the L/C Borrowings and Swing Line Loans, second, shall be applied ratably to the outstanding Revolving Credit Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or a Permitted Affiliate Parentnotice to or from the Borrower) to reimburse the applicable L/C Issuer or the Revolving Credit Lenders, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject Upon any Extraordinary Receipt received by or paid to Section 2.05(b)(ii) below, if any member or for the account of the Restricted Group makes Borrower or any Asset Disposition that results of its Subject Subsidiaries in respect of its property or assets, after the realization or receipt by any member of the Restricted Group first $30,000,000 of Net Available CashCash Proceeds relating to any Extraordinary Receipt and thereafter any amount in excess of $5,000,000 for any one event or series of related events, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash Proceeds received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case therefrom within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten three Business Days after the date of receipt thereof by the Borrower or such rejectionSubsidiary subject to the provisions of Section 2.05(b)(iv); 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 applied 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 prepay the Term Loans Administrative Agent on or prior to the fifth Business Day immediately following the date on which 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 24 months after the date of 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 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 (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 terms hereof; providedproviso of this Section 2.05(b)(i) and, furtheras a result, however, that no such prepayment 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 required where immediately applied to the amount prepayment of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total AssetsLoans as set forth in this Section 2.05.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) applied, first, ratably to each Class of the Term Loans then outstanding or (y) as requested by A Facility and, if applicable, the Incremental Term Facilities and to the principal repayment installments thereof on a Borrower pro rata basis and, thereafter, to the Revolving Credit Facility in the notice delivered manner set forth in clause (iii) of this Section 2.05(b).
(iii) Prepayments of the Revolving Credit Facility made pursuant to clause (i) of this Section 2.05(b)(vii2.05(b), first, shall be applied to any Class or Classes of Term Loansprepay L/C Borrowings outstanding at such time until all such L/C Borrowings are paid in full, (B) appliedsecond, with respect shall be applied to each prepay Swing Line Loans outstanding at such Class for which prepayments will time until all such Swing Line Loans are paid in full, and, third, shall be madeapplied to prepay Revolving Credit Loans outstanding at such time until all such Revolving Credit Loans are paid in full; and, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments of the Revolving Credit Facility required pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses clause (i) through (v) of this Section 2.05(b) at least two Business Days prior to ), the date of such amount remaining, if any, after the prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing in full of all or any portion of the applicable Facility or other conditional eventLoans and L/C Borrowings outstanding at such time, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the 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 member L/C Issuer or the Revolving Credit Lenders, as applicable.
(iv) Notwithstanding the provisions of Section 2.05(b)(i), if any mandatory prepayments under Section 2.05(b)(i) would result in the Borrower incurring any obligation (as determined in the reasonable judgment of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted Borrower) under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against Section 3.05 as a result thereof) of any such mandatory prepayment of Eurodollar Loans prior to the repayment last day of an Interest Period, so long as no Default has occurred and is continuing, the Term Loans pursuant to this Section 2.05(bBorrower may defer the making of such mandatory prepayment until the earlier of (A) to the extent provided herein last day of such Interest Period and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all date thirty days after the Net Available Cash of any date on which such Asset Disposition mandatory prepayment would otherwise have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be been required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Groupmade.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to If any Loan Party or any of its respective Subsidiaries Disposes of any Property (other than any Disposition of any Property permitted by Section 2.05(b)(ii7.05(b)) below, if any member of the Restricted Group makes any Asset Disposition that which results in the realization or receipt by any member such Person of Net Cash Proceeds, the Borrower shall prepay Loans in an aggregate principal amount equal to (A) 100% of such Net Cash Proceeds multiplied by (B) the Ratable Portion of the Restricted Group of Net Available CashAggregate Commitments, the relevant Borrowers shall cause immediately upon receipt thereof by such Person (such prepayments to be prepaid applied as set forth in clause (v) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date that is five Business Days after the realization of such Disposition), and so long as no Default shall have occurred and be continuing, such Loan Party or receipt by any member such Subsidiary may cause said Net Cash Proceeds to be reinvested in outstanding capital stock of the Restricted Group Borrower, Permitted Acquisitions, internal product development or Investments of the type described in the “Investment Guidelines” of the Borrower dated July 1999, a copy of which has been previously delivered to and approved by the Lenders, in the case of any of the foregoing within 90 days of the receipt of such Net Available Cash (orProceeds; and provided, in further, however, that any Net Cash Proceeds not applied as described hereinabove within 90 days of the event receipt thereof shall be immediately applied to the prepayment of Net Available Cash which may be reinvested the Loans as set forth below in this Section 2.05(b)(i).
(ii) Upon the sale or issuance by any Loan Party or any of its respective Subsidiaries of any of its Equity Interests (other than (x) Excluded Issuances, (y) in connection with a Public Offering or (z) sales or issuances of Equity Interests to another Loan Party), which results in the realization by such Person of Net Cash Proceeds, the Borrower shall prepay Loans in an aggregate principal amount equal to (A) 100% of such Net Cash Proceeds multiplied by (B) the Ratable Portion of the Aggregate Commitments, immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clause (v) below); provided, however, that, with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(ii), at the election of the Borrower (as notified by the Borrower to the Administrative Agent on or prior to the date of such reinvestment period expiresDisposition), subject and so long as no Default shall have occurred and be continuing, such Loan Party or such Subsidiary may cause said Net Cash Proceeds to be reinvested in outstanding capital stock of the Borrower, Permitted Acquisitions, internal product development or Investments of the type described in the “Investment Guidelines” of the Borrower dated July 1999, a copy of which has been previously delivered to and approved by the Lenders, in the case of any of the foregoing within 90 days of the receipt of such Net Cash Proceeds; and provided, further, however, that any Net Cash Proceeds not applied as described hereinabove within 90 days of the receipt thereof shall be immediately applied to the prepayment of the Loans as set forth in this Section 2.05(b)(ii).
(iii) Upon the incurrence or issuance by any Loan Party or any of its respective Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 2.05(b)(vii7.02), 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 such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (v) below).
(iv) Upon any Extraordinary Receipt in excess of $50,000,000.00 received by or paid to or for the account of any Loan Party or any of its respective Subsidiaries, and not otherwise included in clauses (i), (ii) or (iii) of this Section 2.05(b), the Borrower shall prepay an aggregate principal amount which is of Loans equal to 100% of all Net Cash Proceeds received therefrom immediately upon receipt thereof by such Loan Party or such Subsidiary (such prepayments to be applied as set forth in clause (v) below); provided, however, that with respect to any proceeds of insurance, condemnation awards (or payments in lieu thereof) or indemnity payments, at the lesser 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 or Event of Default shall have occurred and be continuing, such Loan Party or such Subsidiary may apply such net insurance proceeds, condemnation awards or indemnity payments (A) to the Net Available Cash from such Asset Disposition and repayment in full of any Indebtedness which was secured by the Property or Properties so damaged, destroyed, or condemned or (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account reinvest such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option net insurance proceeds, condemnation awards or indemnity payments in outstanding Equity Interests of the BorrowersBorrower, all Permitted Acquisitions, internal product development or any portion Investments of the Net Available Cash received in connection with an Asset Disposition may be used type described in the business “Investment Guidelines” of the Restricted GroupBorrower dated July 1999, including a copy of which has been previously delivered to make acquisitions, investments, capital expenditures or operational expendituresand approved by the Lenders), in each either case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms receipt thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such any cash proceeds not so applied shall be immediately applied to the prepayment under of the Loans as set forth in this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans2.05(b)(iv), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans Prepayments made pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in not permanently reduce the notice delivered pursuant to Section 2.05(b)(vii)Aggregate Commitments and, to any Class or Classes of Term Loansfirst, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior ratably to the date L/C Borrowings and the Swing Line Loans, second, shall be applied ratably to the outstanding Committed Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations; and the amount remaining, if any, after the prepayment in full of all L/C Borrowings, Swing Line Loans and Committed Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment (unless otherwise agreed by the Administrative Agent); provided thatamounts, subject to the payment when due of any cash collateralization amounts owing as a result thereof pursuant to Section 3.10and remaining amount being, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amountscollectively, the “Declined ProceedsReduction Amount”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member Borrower for use in the ordinary course of its business, and the Restricted Group so longAggregate Commitments shall not be permanently reduced by the Reduction Amount. Upon the drawing of any Letter of Credit that has been Cash Collateralized, but only so longthe 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 the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Groupapplicable.
(ixvi) Upon becoming aware There shall be no annual “clean-down” required in connection with any of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payableCommitted Loans.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) belowIf, if after March 31, 2006, for any member reason, the Total Outstandings at any time exceed the lesser of the Restricted Group makes any Asset Disposition that results Borrowing Base or the Aggregate Commitment then in the realization or receipt by any member of the Restricted Group of Net Available Casheffect, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term immediately prepay Revolving Credit Loans in an aggregate amount which is the lesser of (A) the Net Available Cash from equal to such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receiptexcess, and such proceeds shall not be required to be applied to 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 Loans except Loan to the extent not, within 12 months of such receiptexcess.
(ii) If, so used or contractually committed to be so used (it being understood that if at any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be usedtime for any reason, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C ObligationsObligations exceeds the lesser of, in each case under any Class of when applicable, the Revolver Borrowing Base or the Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectCommitment, the relevant Borrower shall promptly immediately prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided provided, however, that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of L/C Obligations exceed the lesser of, when applicable, the Revolver Borrowing Base or the Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class Commitment then in effect.
(viiii) Each prepayment of Term The Borrower shall prepay outstanding Revolving Credit Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in and thereafter, Cash Collateralize the notice L/C Obligations), within five Business Days after financial statements have been delivered pursuant to Section 2.05(b)(vii6.01(a) and the related Compliance Certificate has been delivered pursuant to Section 6.02(b), in an amount equal to any Class or Classes the net proceeds of Term LoansExcess Cash Flow for the fiscal year covered by such financial statements; provided, however, that no such prepayment shall cause a 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 6.01(a) financial statements have been delivered, exceeds (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion Outstanding Amount of Revolving Credit Loans as of the applicable Borrower date of timely delivery of said financial statements, if such difference is positive and solely to the extent it reflects a net reduction in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) Outstanding Amount of each Revolving Loans during such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderperiod.
(viiiv) A In the event and on each occasion that any Net Proceeds are received by or on behalf of the Borrower or any Subsidiary of the Borrower or any other Loan Party in respect of any Prepayment/Reduction Event, then, immediately after such Net Proceeds are received, the Borrower shall notify prepay the Administrative Agent then outstanding Term Loan in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (Proceeds, and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to thereafter such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at Proceeds shall reduce the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupRevolving Credit Commitment.
(ixv) Upon becoming aware Unless otherwise specified herein, each mandatory prepayment of a Change Loans shall be applied first to Term Loan installments in the inverse order of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facilitymaturity, and the Commitments thereunder and declare all outstanding Borrowingssecond, to Revolving Credit Loans. Each prepayment shall be made together with accrued interest on the amount prepaid and all other any amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will required to be cancelled and all such outstanding and accrued amounts will become immediately due and payablepaid pursuant to Section 3.
Appears in 1 contract
Samples: Credit Agreement (Find SVP Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If for any member of reason the Restricted Group makes Total Revolving Outstandings at any Asset Disposition that results in time exceed the realization or receipt by any member of the Restricted Group of Net Available CashRevolving Facility at such time, the relevant Borrowers shall cause immediately prepay Revolving 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 be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group 103% of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans excess or otherwise in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on and/or in a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except manner reasonably acceptable to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assetsapplicable L/C Issuer.
(ii) Notwithstanding anything in Prepayments of the Revolving Facility made pursuant to this Agreement Section 2.04(b), first, shall be applied ratably to the contraryL/C Borrowings, no Borrower will second, shall be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior applied ratably to the Reinvestment End Dateoutstanding Revolving Loans, and, third, shall be used to Cash Collateralize the remaining L/C Obligations. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from any Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Lenders, as applicable.
(iii) If any after the Closing Date a member of the Restricted Borrower Group Incurs conveys, sells, leases (including via sublease), transfers or issues otherwise disposes of (1)(A) its direct or indirect beneficial ownership interests in any Indebtedness Designated Property Operating Entity or (B) all or substantially all of the assets of a Designated Property Operating Entity or (2)(A) its direct or indirect beneficial ownership interests in any Non-Designated Property Operating Entity or (B) all or substantially all of the assets of a Non-Designated Property Operating Entity, in each case whether in a single transaction or a related series of transactions (any such conveyance, sale, lease, transfer or other disposition described in clause (1) or (2), a “Specified Disposition”), then within ten (10) Business Days (subject to extension as needed to obtain any required Gaming Approvals or to comply with any applicable Gaming Laws) after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 date of Xxxxx XXreceipt of the Net Available Proceeds from such Specified Disposition by the Borrower Group, (x) in the case of a Specified Disposition described in clause (1) above, the Borrowers Revolving Commitments shall cause to be prepaid an aggregate principal amount of Term Loans permanently reduced in an amount (and, solely to the extent then outstanding, the Revolving Loans shall be repaid in a corresponding amount) equal to 100% of all net cash proceeds the Net Available Proceeds of any such Specified Disposition received therefrom on or prior by the Borrower Group and (y) in the case of a Specified Disposition described clause (2) above, solely to the date that is five extent then outstanding, the Revolving Loans shall be repaid in an amount (and, for the avoidance of doubt, the Revolving Commitments shall not be reduced) equal to 100% of the Net Available Proceeds of any such Specified Disposition in excess of the greater of (A) $100.0 million and (B) 5.0% of Borrower Group EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) received by the Borrower Group; provided that, solely with respect to a Specified Disposition described in clause (2) above, at the election of the Borrowers (as notified by the Borrowers to the Administrative Agent within ten Business Days after following the date of receipt of such Net Available Proceeds of such Specified Disposition), the Borrower Group may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the business of the Borrower Group (including by way of merger or Investment) (i) within 365 days following the date of receipt of such Net Available Proceeds of such Specified Disposition or (ii) if a member of the Restricted Borrower Group enters into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause (i), within 180 days after the end of such net cash proceeds365-day period; provided further, however, that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower Group determines not to reinvest the Net Available Proceeds from such Specified Disposition as set forth above) shall be immediately applied to the prepayment of the Revolving Loans (solely to the extent then-outstanding) as set forth in this Section 2.04(b)(iii). For the avoidance of doubt, the MGM Mirage Disposition Transaction shall not constitute a Specified Disposition and the Borrower Group shall not be required to make any mandatory prepayment or commitment reduction in connection therewith.
(iv) If Within ten days after the receipt by any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out Restricted Subsidiary of an exchange of existing Term Loans for such Refinancing Term Loans)any Net Available Proceeds from any Debt Issuance, such Borrower (or the Company on its behalf) Revolving Commitments shall cause to be prepaid an aggregate principal amount of Term Loans permanently reduced in an amount (and, solely to the extent then outstanding, the Revolving Loans shall be repaid in a corresponding amount) equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by Net Available Proceeds of any such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii)Debt Issuance. Notwithstanding clause (A) hereinabovethe foregoing, (1) in the case each Revolving Lender may reject all of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing its pro rata share of any mandatory prepayment of Term Revolving Loans (and, in the case of a Specified Disposition described in Section 2.04(b)(iii)(1), a permanent reduction of its Revolving Commitment) required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in2.04(b)(iii) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower Company no later than 5:00 p.m. one (New York City time) on the Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such mandatory prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term LoansRevolving Loans (and, in the case of a Specified Disposition described in Section 2.04(b)(iii)(1), a permanent reduction of its Revolving Commitment) to which such Lender is otherwise entitled. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers The Borrower shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on make a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to until paid in full upon the repurchase or prepayment occurrence of Other Applicable Indebtedness, and the amount of prepayment any of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to following events at the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (following times and in any event within ten Business Days after the date of such rejectionfollowing amounts:
(i) be applied to prepay the Term Loans in accordance Concurrently with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount receipt by any Loan Party or any Subsidiary of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contraryNet Cash Proceeds from any Asset Sale or Extraordinary Receipt, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom such Net Cash Proceeds; provided that, notwithstanding the foregoing, no such prepayment shall be required with respect to any Net Cash Proceeds so long as (x) no Event of Default shall have occurred and be continuing and (y) the Borrower provides written notice to the Administrative Agent of its intent to invest, directly or through one or more of its Subsidiaries, such Net Cash Proceeds within 365 days of receipt thereof in assets of the general type used in the business of the Borrower and its Subsidiaries; provided that, if, prior to the expiration of such 365-day period, the Borrower, directly or through its Subsidiaries, shall have entered into a binding agreement providing for such investment on or prior to the expiration of an additional 180-day period, such 365-day period shall be extended to the date that is five Business Days after receipt by provided for such member investment in such binding agreement; and provided further that, if at the conclusion of such period, all or any portion of such Net Cash Proceeds have not been so invested, the Borrower shall make a prepayment of the Restricted Group Term Loans at such time in the amount of such net cash proceedsunutilized Net Cash Proceeds.
(ivii) If Concurrently with the receipt by any Borrower Incurs Loan Party or issues any Refinancing Term Loans resulting in net cash proceeds Subsidiary of any Net Cash Proceeds from any issuance of any Indebtedness of any Loan Party or any Subsidiary (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loansexcluding Indebtedness permitted by Section 6.2), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted GroupProceeds.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. i. (iA) Subject If (1) any Restricted Company Disposes of any property or assets pursuant to Section 2.05(b)(ii7.05(l)(ii), 7.05(q), 7.05(s), 7.05(t) belowor 7.05(u) or (2) any Casualty Event occurs, if any member of which in the Restricted Group makes any Asset Disposition that aggregate results in the realization or receipt by any member of the Restricted Group Company of Net Available CashCash Proceeds in excess of $5,000,000 in any fiscal year, the relevant Borrowers Borrower shall cause to be prepaid on or prior to the date that which is five ten Business Days after the date of the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Proceeds an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance))Proceeds received; provided that no such prepayment shall be required pursuant to this Section 2.06(b)(i)(A) if, on or prior to such date, the Borrower shall have given written notice to the Administrative Agent of its intention to reinvest all or a portion of such Net Cash Proceeds in accordance with Section 2.06(b)(i)(B) (which election may only be made if no Event of Default has occurred and is then continuing);
1. With respect to any Net Cash Proceeds realized or received with respect to any Disposition or any Casualty Event required to be applied in accordance with Section 2.06(b)(i)(A), at the option of the BorrowersBorrower, and so long as no Event of Default shall have occurred and be continuing, the Borrower may reinvest all or any portion of the such Net Available Cash received in connection with an Asset Disposition may be used Proceeds in the business acquisition, improvement or maintenance of assets useful in the operations of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case Companies within (x) 12 months following receipt of such receipt, and Net Cash Proceeds or (y) if the Borrower enters into a contract to reinvest such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used Net Cash Proceeds within such 12 month period but within following receipt thereof, 18 months following receipt of such Net Cash Proceeds; provided that if any Net Cash Proceeds are no longer intended to be so reinvested at any time after delivery of a notice of reinvestment election or are not so reinvested during such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 or 18 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i))period, as of the date or such termination; providedapplicable, further, that, if at the time that an amount equal to any such prepayment would Net Cash Proceeds shall within ten Business Days be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) applied to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to as set forth in this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets2.06.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) . If any member of the Restricted Group Incurs Company incurs or issues any Indebtedness after the 2020 Amendment Effective Date not expressly permitted to be Incurred incurred or issued pursuant to Section 4.09 of Xxxxx XX7.03 (other than Refinancing Indebtedness which shall be treated in accordance with Section 2.19), the Borrowers Borrower shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the receipt of such Net Cash Proceeds.
iii. Commencing with the fiscal year ending December 31, 2016, within ten Business Days after financial statements have been or are required to be delivered pursuant to Section 6.01(a) and the related Compliance Certificate has been or is required to be delivered pursuant to Section 6.02(a), the Borrower shall cause to be prepaid an aggregate principal amount of the Initial Term Loans and any other Term Loans then subject to ratable prepayment requirements in accordance with Section 2.06(b)(iv) in an amount equal to (A) 50% of Excess Cash Flow, if any, for the fiscal year covered by such Borrower financial statements minus (B) the sum of (1) the amount of any prepayments of the Term Loans made pursuant to Section 2.06(a) during the fiscal year covered by such financial statements and (2) solely to the extent the Revolving Credit Commitments are reduced pursuant to Section 2.07(a) in connection therewith (and solely to the extent of the amount of such net cash proceedsreduction), the amount of any prepayments of the Revolving Credit Loans made pursuant to Section 2.06(a) during the fiscal year covered by such financial statements, in the case of each of clause (1) and clause (2), except to the extent such prepayments were financed with the proceeds of long-term Indebtedness; provided that such percentage shall be reduced to (x) 25% if the First Lien Leverage Ratio as of the end of such fiscal year was equal to or less than 3.25:1.00 and greater than 3.00:1.00 and (y) 0% if the First Lien Leverage Ratio as of the end of such fiscal year was equal to or less than 3.00:1.00.
(v) If for iv. Except as otherwise provided in any reason the aggregate Outstanding Amount of Revolving Credit LoansCommitment Increase and Joinder Agreement, Swing Line Loans and L/C ObligationsRefinancing Amendment or Extension Amendment, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect with respect to the prepayment in full of the applicable Revolving Credit Term Loans and Swing Line Loanscovered thereby, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each each prepayment of Term Loans pursuant to this Section 2.05(b2.06(b) shall be (A) applied either (x) ratably to each Class Tranche of the Term Loans then outstanding or (y) as requested by a Borrower and in direct order of maturities to the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion principal repayment installments of the applicable Borrower in Term Loans that are due after the applicable notice and (C) date of such prepayment. Each such prepayment shall be paid to the Appropriate Term Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderShares.
(vii) A v. The Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i), (ii) through and (viii) of this Section 2.05(b2.06(b) at least two (A) in the case of the prepayment of Term Loans which are Base Rate Loans, one Business Days Day and (B) in the case of prepayments of Term Loans which are Eurodollar Rate Loans, three Business Days, in each case prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayedprepayment. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be madeprepayment. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(vi. [Reserved.]
vii. [Reserved.]
viii) . Notwithstanding any other provisions of this Section 2.052.06(b), (A) to the extent that any or all of the Net Available Cash Proceeds of any Asset Disposition of property or assets by a member Foreign Subsidiary (a “Foreign Asset Sale”), the Net Cash Proceeds of the Restricted Group is any Casualty Event received by a Foreign Subsidiary (a “Foreign Recovery Event”), or Excess Cash Flow attributable to Foreign Subsidiaries are prohibited or delayed by any applicable local Law (including, without limitation, financial assistance, corporate benefit restrictions on upstreaming of cash intra group, and the fiduciary and statutory duties of the directors of such Foreign Subsidiary) from being repatriated to or passed on to or used for the jurisdiction benefit of the relevant Borrower, the portion of such Net Available Cash Proceeds or Excess Cash Flow so affected will not be required to be applied to repay prepay the Term Loans at the times provided in this Section 2.05(b2.06(b) but may be retained by the applicable member of the Restricted Group Foreign Subsidiary so long, but only so long, as the applicable local Law will not permit repatriation or the passing on to or otherwise using for the jurisdiction benefit of the relevant Borrower (each the Borrower hereby agreeing to use (or cause the applicable Foreign Subsidiary to use) all commercially reasonable efforts to cause promptly overcome or eliminate any such restrictions on repatriation, passing on or other use for the applicable member benefit of the Borrower and/or use the other cash sources of the Borrower and the Restricted Group Subsidiaries to promptly take all actions reasonably required by make the applicable local law to permit such repatriation), relevant prepayment) and once such repatriation of any of such affected Net Available Cash Proceeds or Excess Cash Flow is permitted under the applicable local lawLaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash Proceeds or Excess Cash Flow will be applied promptly (and in any event not later than five two Business Days after such repatriation) applied (net of additional Taxes taxes payable or reserved against as a result thereof) to the repayment prepayment of the Term Loans pursuant to Section 2.06(b);
ix. Notwithstanding the foregoing, each Term Lender shall have the right to reject its applicable percentage of any mandatory prepayment of the Term Loans pursuant to this Section 2.05(b2.06(b) to (each such Lender, a “Rejecting Lender”), in which case the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash amounts so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but rejected may be retained by the applicable member Borrower (the aggregate amount of the Restricted Group.
(ix) Upon becoming aware such proceeds so rejected as of a Change any date of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so requiredetermination, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable“Declined Proceeds”).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Fidelity National Financial, Inc.)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowThe Commitment Amount shall, if any member of on the Restricted Group makes any Asset Disposition that results in second Business Day following the realization or receipt by the Parent or any member of its Subsidiaries of any Net Disposition Proceeds, Net Equity Proceeds, Net Issuance Proceeds or Casualty Proceeds, as the Restricted Group of Net Available Cashcase may be, the relevant Borrowers shall cause be reduced by an aggregate amount equal to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group 100% of such Net Available Cash Disposition Proceeds, 50% of such Net Equity Proceeds, 100% of such Net Issuance Proceeds or 100% of such Casualty Proceeds, as the case may be; provided, however, that, so long as a Default has not occurred and is not then continuing, the Commitment Amount shall not be reduced by
(or, in a) the event amount of Net Available Cash which may be reinvested as set forth below Disposition Proceeds received by the Parent or such Subsidiary in this Section 2.05(b)(i), on any Fiscal Year (commencing with the date 2000 Fiscal Year) to the extent (x) such reinvestment period expires), subject proceeds are applied to Section 2.05(b)(vii), an aggregate principal amount the acquisition or construction of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as property or assets to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted GroupBorrowers and their Subsidiaries within 180 days following the receipt thereof and (y) such property and assets (other than such property and assets so acquired or constructed in any Fiscal Year that have an aggregate fair market value not exceeding $1,000,000) are subject to a perfected, including first priority Lien in favor of the Administrative Agent, subject only to make acquisitionsLiens permitted by clauses (k), investments(l), capital expenditures or operational expenditures(m) and (o) of Section 8.2.3; provided further, in each case within 12 months of such receipthowever, and such proceeds that Net Disposition Proceeds exceeding $2,500,000 from a 44 single transaction shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as reduction of the date or such termination; provided, further, that, Commitment Amount if at (i) the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify Parent notifies the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date thirtieth day following the receipt of such Xxxxxx’s Net Disposition Proceeds of the Parent's or such Subsidiary's good faith intention to apply such Net Disposition Proceeds to such replacement, acquisition or construction (and describes in reasonable written detail such proposed application no later than the sixtieth day following the receipt of such Net Disposition Proceeds) within 360 days following the receipt of such Net Disposition Proceeds and (ii) the Parent or such Subsidiary in fact uses such Net Disposition Proceeds as specified in such notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within 360 days following the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion receipt of such Net Available Cash so affected will not be required to be Disposition Proceeds; and
(b) the amount of any Casualty Proceeds received by the Parent or such Subsidiary that are applied to repay Term Loans at the times rebuilding or replacement of the property or assets which were the source of such Casualty Proceeds within 180 days following the occurrence of such Casualty Event or such longer period as may otherwise be provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) Mortgage with respect to such Net Available Cash, property or assets. Each such Net Available Cash so affected will not reduction in the Commitment Amount shall be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Grouppermanent and automatic.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Amendment Agreement (Dollar Thrifty Automotive Group Inc)
Mandatory. (i) Subject [Reserved].
(i) If (x) the Borrower or any Restricted Subsidiary of the Borrower Disposes of any property or assets constituting Collateral pursuant to Section 2.05(b)(ii7.05(i) belowor (y) any Casualty Event occurs, if any member in each case, in excess of the Restricted Group makes any Asset Disposition that $5,000,000 in a single transaction or a series of related transactions, which results in the realization or receipt by any member of the Borrower or Restricted Group Subsidiary of Net Available CashProceeds, the relevant Borrowers Borrower shall cause to be offered to be prepaid in accordance with clause (b)(viii) below, on or prior to the date that which is five ten (10) Business Days after the date of the realization or receipt by the Borrower or any member of the Restricted Group Subsidiary of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires)Proceeds, subject to Section 2.05(b)(vii)clause (b)(x) below, an aggregate principal amount of Term Loans in an amount which is the lesser equal to 100% of (A) the all Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance))Proceeds received; provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any the Borrower (or any member of the Restricted Group) is required to offer to prepay repurchase any Permitted First Priority Refinancing Debt or repurchase other Senior Secured any Indebtedness incurred pursuant to Section 7.03(q) that is secured on a pari passu basis with the Obligations (or any Permitted Refinancing thereof that is secured on a pari #4865-3972-4350v17 passu basis with the Obligations) pursuant to the terms of the documentation governing such Indebtedness with the net proceeds Net Proceeds of such Asset Disposition or Casualty Event (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers Borrower may apply such Net Available Cash Proceeds on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time); provided, further, that (A) the portion of such net proceeds Net Proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds Net Proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds Net Proceeds shall be allocated to the Term Loans in accordance with the terms hereof) hereof to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i2.05(b)(ii) shall be reduced accordingly; provided, further, that accordingly and (B) to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten (10) Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to If the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs Subsidiary incurs or issues any Indebtedness after the 2020 Amendment Effective Closing Date (other than Indebtedness not permitted to be Incurred or issued pursuant to prohibited under Section 4.09 of Xxxxx XX7.03 (excluding Section 7.03(t))), the Borrowers Borrower shall cause to be offered to be prepaid in accordance with clause (b)(viii) below an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Proceeds received therefrom on or prior to the date which is five (5) Business Days after the receipt by the Borrower or such Borrower Restricted Subsidiary of such net cash proceedsNet Proceeds.
(viii) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments Exposures at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effecteffect (including, for the avoidance of doubt, as a result of the termination of any Class of Revolving Credit Commitments on the Maturity Date with respect thereto), the relevant Borrower shall promptly prepay or cause to be promptly prepaid Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such the Borrower shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(iv) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the Loans such aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiv) Each Except with respect to Loans incurred in connection with any Refinancing Amendment, Term Loan Extension Request, Revolver Extension Request or any Incremental Amendment (which may be prepaid on a less than pro rata basis in accordance with its terms), (A) each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to amortization payments in respect of each Class of Term Loans then outstanding or as directed by the Borrower (yprovided that (i) as requested by a Borrower in any prepayment of Term Loans with the notice delivered pursuant Net Proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to Section 2.05(b)(vii)each applicable Class of Refinanced Debt, to (ii) any Class of Incremental Term Loans may specify that one or more other Classes of Term Loans and Incremental Term Loans may be prepaid prior to such Class of Incremental Term Loans, and (iii) the Borrower may not direct that any such prepayment be applied to a later maturing Class of Term Loans without at least pro rata repayment of any related earlier maturing Class of Term Loans) and (B) applied, with respect to each such Class for which prepayments will prepayment shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) Shares of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non#4865-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non3972-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.4350v17
Appears in 1 contract
Mandatory. (i) Subject to If the Company or any of its Restricted Subsidiaries Disposes of any property (other than any Disposition of any property permitted by Section 2.05(b)(ii7.05(a) below, if any member of the Restricted Group makes any Asset Disposition that through (d)) which results in the realization by such Person of Net Cash Proceeds (other than from the Company or a Restricted Subsidiary in a transaction permitted hereby), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds immediately upon receipt thereof by such Person (such prepayments to be applied as set forth in clauses (iv) and (vi) below); provided that (A) no prepayment shall be required to be made (x) for any member Disposition where such Disposition (when combined with all other Dispositions in a series of related Dispositions) is under $5,000,000 and (y) with the first $20,000,000 of Net Cash Proceeds from Dispositions (including Dispositions of less than $5,000,000) (less any exclusion of prepayments from Net Cash Proceeds of Extraordinary Receipts resulting from the application of proviso (A) to clause (iii) below) in any fiscal year of the Restricted Group Company and (B) with respect to any Net Cash Proceeds realized under a Disposition described in this Section 2.05(b)(i), at the election of Net Available Cash, the relevant Borrowers shall cause Company (as notified by the Company to be prepaid the Administrative Agent on or prior to the date that is five Business Days after of such Disposition), and so long as no Default shall have occurred and be continuing, the realization Company or receipt by such Restricted Subsidiary may reinvest all or any member of the Restricted Group portion of such Net Available Cash (or, Proceeds in operating assets or assets useful in the event business of the Company and its Restricted Subsidiaries, including Permitted Acquisitions, so long as within 365 days after the receipt of such Net Available Cash which may Proceeds, such purchase shall have been consummated (as certified by the Company in writing to the Administrative Agent), it being understood that any Net Cash Proceeds not so reinvested shall be reinvested immediately applied to the prepayment of the Loans as set forth below in this Section 2.05(b)(i) (giving effect to the preceding proviso (A)).
(ii) Upon the incurrence or issuance by the Company or any of its Restricted Subsidiaries of any Indebtedness (other than Indebtedness expressly permitted to be incurred or issued pursuant to Section 7.02), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Borrowers shall prepay an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (iv) and (vi) below).
(iii) Upon any Extraordinary Receipt received by or paid to or for the account of the Company or any of its Restricted Subsidiaries, and not otherwise included in clause (i) or (ii) of this Section 2.05(b), the Borrowers shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds received therefrom immediately upon receipt thereof by the Company or such Restricted Subsidiary (such prepayments to be applied as set forth in clauses (iv) and (vi) below); provided that (A) no prepayment shall be required to be made (x) if the Extraordinary Receipts from such occurrence or series of occurrences are less than $5,000,000 and (y) with the first $20,000,000 of Net Cash Proceeds from Extraordinary Receipts (including Extraordinary Receipts of less than $5,000,000) (less any exclusion of prepayments from Net Cash Proceeds of Dispositions resulting from the application of proviso (A) to clause (i) above) in any fiscal year of the Company and (B) with respect to any proceeds of insurance or condemnation awards (or payments in lieu thereof), at the election of the Company (as notified by the Company to the Administrative Agent on or prior to the date that is five Business Days of receipt of such insurance proceeds or condemnation awards), and so long as no Default shall have occurred and be continuing, the Company or such Restricted Subsidiary may apply within 365 days after the receipt by of such member cash proceeds to replace or repair the equipment, fixed assets or real property in respect of which such cash proceeds were received or other assets useful in the business of the Company and its Restricted Group Subsidiaries, including Permitted Acquisitions, it being understood that any Net Cash Proceeds not so applied shall be immediately applied to the prepayment of such net cash proceedsthe Loans as set forth in this Section 2.05(b)(iii) (giving effect to the preceding proviso (A)).
(iv) If Each prepayment of Loans pursuant to the foregoing provisions of this Section 2.05(b) shall be applied, first, ratably to each of the Term Facilities (including, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.16(a)(v)(A), of any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Incremental Term Loans) and to the principal repayment installments thereof in direct order of maturity to the next four principal repayment installments of the applicable Term Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.16(a)(v)(A), such Borrower (or the Company on its behalfof any Incremental Term Loans) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior and, thereafter, to the date which is five Business Days after remaining principal repayment installments (including any installment on the receipt by such Borrower Maturity Date) of such net cash proceedsthe applicable Term Facility (and, to the extent provided in the definitive loan documentation therefor in accordance with Section 2.16(a)(v)(A), of any Incremental Term Loans) on a pro rata basis and, second, to the Revolving Credit Facility (without permanent reduction of the Revolving Credit Commitments) in the manner set forth in clause (vi) of this Section 2.05(b).
(v) If for any reason the aggregate Outstanding Amount of Total Revolving Credit Outstandings at any time exceed the Revolving Credit Facility at such time, the Borrowers shall immediately prepay Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans Borrowings and/or Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments (other than the L/C Borrowings) in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment Prepayments of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered Revolving Credit Facility made pursuant to Section 2.05(b)(vii2.05(b)(iv) or (v), first, shall be applied ratably to any Class or Classes of Term the L/C Borrowings and the Swing Line Loans, (B) appliedsecond, with respect to each such Class for which prepayments will shall be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid applied ratably to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term outstanding Revolving Credit Loans, subject and, third, shall be used to Section 2.05(b)(vii). Notwithstanding clause (A) hereinaboveCash Collateralize the remaining L/C Obligations; and, (1) in the case of prepayments of the Revolving Credit Facility required pursuant to Section 2.05(b)(iv), any amount remaining after the prepayment in full of all L/C Borrowings, Swing Line Loans and Revolving Credit Loans outstanding at such prepayment time and the Cash Collateralization of the remaining L/C Obligations in full may be retained by the Borrowers for use in the ordinary course of its business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected (without any further action by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e.to or from the Company or any other Loan Party) to reimburse the L/C Issuer or the Revolving Credit Lenders, the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderapplicable.
(vii) A Notwithstanding anything to the contrary contained in Section 2.05(b)(i) or (iii), to the extent attributable to a Disposition by a Restricted Subsidiary or an Extraordinary Receipt received by a Restricted Subsidiary, that is, in either case, a Foreign Subsidiary and in any such case a Restricted Payment or other distribution to the applicable Borrower shall notify or the Administrative Agent in writing of any Company is required (notwithstanding the Loan Parties’ commercially reasonable efforts to make such mandatory prepayment of Term Loans required to be made by without making such Borrower pursuant to clauses (iRestricted Payment or other payment) through (v) of this Section 2.05(b) at least two Business Days prior to the date of in connection with such prepayment (unless otherwise agreed by or portion thereof), no prepayment (or a portion thereof) required under Section 2.05(b)(i) or (iii) shall be made if either of the Administrative AgentCompany or any Restricted Subsidiary determines in good faith that it would incur a liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution which the Company, in its reasonable judgment, deems to be material (after giving effect to distributions or payments to Foreign Designated Borrowers); provided that, subject . Notwithstanding anything in the preceding sentence to the payment when due of contrary, in the event the limitations or restrictions described therein cease to apply to any amounts owing as a result thereof pursuant to Section 3.10such required prepayment, such Borrower may rescind (or delay the date of prepayment identified in) such notice if Borrowers shall make such prepayment would have resulted from a refinancing in an amount equal to the lesser of all or any portion of (1) the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment previously required to be made. The Administrative Agent will promptly notify have been made without having given effect to such limitations or restrictions and (2) the amount of cash and Cash Equivalents on hand at such time, in each Appropriate Lender of case, less the contents of amount by which the Net Cash Proceeds from the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of Disposition or Extraordinary Receipt were previously used for the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory permanent repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, Indebtedness (including any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis reductions in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agentcommitments related thereto). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to In the extent event that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated prepayment pursuant to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but would require that the Borrowers pay compensation under Section 3.05, the Borrowers may defer such payment until such date as no such compensation would be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will it shall not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained deferred by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less more than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payabledays.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) belowIn the event that there shall be an Asset Disposition, if any member the respective Commitments of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) Lenders shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid ratably by an aggregate principal amount of Term Loans in an amount equal to 100% of all the net after-tax proceeds of such Asset Disposition. For the purpose of this subsection (b) any net after-tax non-cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) spin-off shall be valued at (Ai) applied either the greater of (x) ratably to each Class of Term Loans then outstanding or the book value and (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences fair market value (as determined in good faith by such Borrowerthe Board of Directors of PM Companies) with respect of the assets subject to such Net Available CashAsset Disposition, less (ii) the cash proceeds, if any, received as a result of such Net Available Cash so affected will not be required Asset Disposition. In the event that the purchase price of assets subject to an Asset Disposition is subject to adjustment, as a result of which PM Companies reasonably believes that the proceeds ultimately to be applied received therefrom will be reduced, then until such time as such adjustment is finalized, for purposes of this subsection (b) the "net after-tax proceeds" shall include only the amount of those proceeds actually received by PM Companies or any affiliate of PM Companies, less an adjustment reserve in an amount reasonably determined by PM Companies to repay Term Loans at be equivalent to such adjustment therein. As soon as such adjustment is finalized, any further reduction in the times Commitments shall be made as above provided in this Section 2.05(bsubsection (b). Any reduction pursuant to this subsection (b) shall be effective on a date selected by PM Companies but may be retained by in any event no later than the applicable member last day of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) calendar quarter during which the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative AgentAsset Disposition occurs; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not provided that any reduction which would be in amount less than 30 Business Days’ notice $50,000,000 shall not be made but shall be included in the calculation of the subsequent reduction or reductions provided for in this subsection (b) until the aggregate amount of any such subsequent reduction shall be at least equal to the Company, cancel each Facility$50,000,000, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will such reduction shall then be cancelled and all such outstanding and accrued amounts will become immediately due and payablemade as above provided in this subsection (b).
Appears in 1 contract
Samples: Revolving Credit Agreement (Philip Morris Companies Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) belowThe Commitment Amount shall, if any member of on the Restricted Group makes any Asset Disposition that results in second Business Day following the realization or receipt by the Parent or any member of its Subsidiaries of any Net Disposition Proceeds, Net Equity Proceeds, Net Issuance Proceeds or Casualty Proceeds, as the Restricted Group of Net Available Cashcase may be, the relevant Borrowers shall cause be reduced by an aggregate amount equal to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group 100% of such Net Available Cash Disposition Proceeds, 50% of such Net Equity Proceeds, 100% of such Net Issuance Proceeds or 100% of such Casualty Proceeds, as the case may be; provided, however, that, so long as a Default has not occurred and is not then continuing, the Commitment Amount shall not be reduced by
(or, in a) the event amount of Net Available Cash which may be reinvested as set forth below Disposition Proceeds received by the Parent or such Subsidiary in this Section 2.05(b)(i), on any Fiscal Year (commencing with the date 2000 Fiscal Year) to the extent (x) such reinvestment period expires), subject proceeds are applied to Section 2.05(b)(vii), an aggregate principal amount the acquisition or construction of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as property or assets to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted GroupBorrowers and their Subsidiaries within 180 days following the receipt thereof and (y) such property and assets (other than such property and assets so acquired or constructed in any Fiscal Year that have an aggregate fair market value not exceeding $1,000,000) are subject to a perfected, including first priority Lien in favor of the Administrative Agent, subject only to make acquisitionsLiens permitted by clauses (k), investments(l), capital expenditures or operational expenditures(m) and (o) of Section 8.2.3; provided further, in each case within 12 months of such receipthowever, and such proceeds that Net Disposition Proceeds exceeding $2,500,000 from a single transaction shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as reduction of the date or such termination; provided, further, that, Commitment Amount if at (i) the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify Parent notifies the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date thirtieth day following the receipt of such Xxxxxx’s Net Disposition Proceeds of the Parent's or such Subsidiary's good faith intention to apply such Net Disposition Proceeds to such replacement, acquisition or construction (and describes in reasonable written detail such proposed application no later than the sixtieth day following the receipt of such Net Disposition Proceeds) within 360 days following the receipt of such Net Disposition Proceeds and (ii) the Parent or such Subsidiary in fact uses such Net Disposition Proceeds as specified in such notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within 360 days following the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion receipt of such Net Available Cash so affected will not be required to be Disposition Proceeds; and
(b) the amount of any Casualty Proceeds received by the Parent or such Subsidiary that are applied to repay Term Loans at the times rebuilding or replacement of the property or assets which were the source of such Casualty Proceeds within 180 days following the occurrence of such Casualty Event or such longer period as may otherwise be provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) Mortgage with respect to such Net Available Cash, property or assets. Each such Net Available Cash so affected will not reduction in the Commitment Amount shall be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Grouppermanent and automatic.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if If any member of the Restricted Group Borrowers or any Subsidiary makes any Asset Disposition that of the type described in clause (i), (j) or (k) of Section 7.05 which results in the realization or receipt by any member of the Restricted Group such Person of Net Available CashCash Proceeds, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), prepay an aggregate principal amount of Term the Loans in an amount which is the lesser of equal to (A) 100% of the Net Available Cash from such Asset Proceeds received therefrom for any Disposition of the type described in Section 7.05(i) and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion 100% of the Net Available Cash Proceeds received therefrom in connection with an Asset Disposition may be used excess of $25,000,000100,000,000 in the business aggregate for the Net Cash Proceeds received from all such Dispositions of the Restricted Group, type described in Sections 7.05(j) and (k) during the twelve month period most recently ended on or before such date (and including to make acquisitions, investments, capital expenditures or operational expendituresthe month in which such Disposition occurred), in each case within 12 months of clauses (A) and (B) no later than fifteen (15) days after the end of the month during which such receipt, and Disposition occurred (such proceeds shall not be required prepayments to be applied to prepay the Term Loans except as set forth in clauses (ii) and (v) below, as applicable); provided that, so long as no Event of Default exists at such time, to the extent not, within 12 months of a Restricted Payment or other distribution to a Borrower is required (notwithstanding the Loan Parties’ commercially reasonable efforts to make such receipt, so used mandatory prepayment without making such Restricted Payment or contractually committed to be so used other payment) in connection with such prepayment (it being understood that if any or portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)thereof), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such no prepayment would be required, any Borrower (or any member of the Restricted Groupa portion thereof) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be made if the applicable Borrower or the applicable Subsidiary determines in good faith that it would incur liability in respect of Taxes (including any withholding tax) in connection with making such Restricted Payment or other distribution which such Borrower, in its reasonable judgment, deems to be material. Notwithstanding anything in the preceding sentence to the contrary, in the event the limitations or restrictions described therein cease to apply to any prepayment (or portion thereof) required where under this Section 2.05(b)(i), the Borrowers shall make such prepayment in an amount equal to the amount of any such prepayment would be previously required to have been made without having given effect to such limitations or restrictions, less than the greater amount by which the Net Cash Proceeds from the applicable Disposition were previously used for the permanent repayment of $200,000,000 and 3.0% of Total AssetsIndebtedness.
(ii) Notwithstanding anything in this Agreement Each prepayment of Termthe Loans pursuant to the contraryforegoing clause (i) of this Section 2.05(b) shall be applied, no Borrower will be required first, ratably between the Closing Date Term Loans and the Fourth Amendment Term Loans (and, to make or cause the extent set forth in the applicable Increase Joinder, any subsequent Incremental Term Loans) and to be made the scheduled principal repayment installments thereof on a pro-rata basis and, second, to the Revolving Credit Facility without any prepayment pursuant reduction of the Revolving Credit Commitments in the manner set forth in clause (v) of this Section 2.05(b). Subject to Section 2.05(b)(i) above if the Financial Covenant was not required to 2.17, such prepayments shall be tested for the most recent Test Period ending prior paid to the Reinvestment End DateLenders in accordance with their respective Applicable Percentages in respect of the relevant Facilities.
(iii) If the Administrative Agent notifies the Company at any member of time that the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in Total Revolving Credit Outstandings at such time exceed an amount equal to 100103% of all net cash proceeds received therefrom on or prior to the date that is Revolving Credit Facility then in effect, then, within five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effectnotice, the relevant Borrower Borrowers shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or the Company shall (or shall cause another Loan Party to) Cash Collateralize any the L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal sufficient to reduce such excessOutstanding Amount as of such date of payment to an amount not to exceed 103% of the Revolving Credit Facility then in effect; provided that such Borrower provided, however, that, subject to the provisions of Section 2.16, the Company shall not be required to Cash Collateralize any the L/C Obligations pursuant to this Section 2.05(b)(v2.05(b)(iii) unless, unless after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Total Revolving Credit Commitments exceeds Outstandings exceed 103% of the aggregate Revolving Credit Commitments of such Class Facility then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(viiv) Each If the Administrative Agent notifies the Company at any time that the portion of the Total Revolving Credit Outstandings denominated in Alternative Currencies at such time exceeds an amount equal to 103% of the Alternative Currency Sublimit then in effect, then, within five Business Days after receipt of such notice, the Borrowers shall prepay Revolving Credit Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such portion of the Total Revolving Credit Outstandings as of such date of payment to an amount not to exceed 103% of the Alternative Currency Sublimit then in effect; provided, however, that, subject to the provisions of Section 2.16, the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(b)(iv) unless after the prepayment in full of Term the Revolving Credit Loans denominated in Alternative Currencies the portion of the Total Revolving Credit Outstandings denominated in Alternative Currencies exceeds 103% of the Alternative Currency Sublimit then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
(v) Prepayments of the Revolving Credit Facility made pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loansfirst, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely ratably to those applicable Classes of Term Loans selected by the applicable Borrower L/C Borrowings and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt)Swing Line Loans, and (2) any Additional Facility Joinder Agreement or Extension Amendmentsecond, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior applied ratably to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of outstanding Revolving Credit Loans without any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion reduction of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerRevolving Credit Commitments.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement (Stericycle Inc)
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion The Borrower shall be required to prepay all or a portion of the Loans (to and/or reduce the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C ObligationsCommitments, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then as provided in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(vclause (ii) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.below:
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided thatLenders, subject to the payment when due within three (3) Business Days after any date on which any Borrower Group Member receives Net Cash Proceeds of any amounts owing as a result thereof Disposition after the Financial Closing Date (other than Dispositions permitted pursuant to Section 3.107.02(a), Section 7.02(b), Section 7.02(c), Section 7.02(e), Section 7.02(f), Section 7.02(g), Section 7.02(h) or Section 7.02(i)), in the event that the Net Cash Proceeds of such Borrower may rescind (Disposition exceed $2,000,000 individually or delay in the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or aggregate in any portion of fiscal year; provided that the applicable Facility or other conditional event, which refinancing or other conditional event foregoing shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment apply (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A1) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be Proceeds are required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted otherwise under the terms and conditions of Existing Indebtedness, the Operating Company Facilities or Permitted Refinancing Indebtedness or, in the case of a Disposition by PSE or its Subsidiaries, applicable local lawLaw, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B2) to the extent that a Borrower has determined Dividend Prohibition applies with respect to the applicable Subsidiary, except that if and to the extent that such Dividend Prohibition subsequently ceases to apply (x) on or prior to the one-year anniversary of the applicable Subsidiary’s receipt of such Net Cash Proceeds, the prepayment otherwise required by this clause (A) shall be reinstated except to the extent that such Net Cash Proceeds are reinvested as permitted by clause (3) below following the applicable Reinstatement Date and (y) after the one-year anniversary of the applicable Subsidiary’s receipt of such Net Cash Proceeds and if such Net Cash Proceeds equal or exceed $10,000,000 individually or in good faith the aggregate, the prepayment otherwise required by this clause (A) shall be reinstated except to the extent that repatriation such Net Cash Proceeds (I) shall have been applied to repay Indebtedness of any of PSE or the applicable Subsidiary, and terminate all the Net Available Cash of any commitments with respect thereto such Asset Disposition would that such Indebtedness may not be reborrowed or (II) shall have material adverse tax consequences been applied to fund Utility Capital Expenditures or (as determined in good faith by such Borrower3) with respect to Dispositions permitted under Section 7.02(d) or Section 7.02(j), the Net Cash Proceeds thereof are (x) reinvested or (y) committed to be reinvested (in property identified to the Facility Agent in writing with reasonable specificity), in each case, in Utility Capital Expenditures and within one hundred and eighty (180) days following such Disposition and, in the case of clause (y), reinvested within twelve (12) months after the receipt thereof (provided that to the extent that a Dividend Prohibition exists with respect to the applicable Subsidiary at the time of receipt of such Net Available Cash, Cash Proceeds such one hundred and eighty (180) day and twelve (12) month periods shall run from the applicable Reinstatement Date if such Net Available Cash Proceeds are held by the applicable Subsidiary in a segregated investment or other account, unless and until so affected will reinvested);
(B) unless otherwise agreed by the Lenders, on each Cash Sweep Calculation Date, in an amount equal to amounts that were deposited by the Borrower and its Subsidiaries into the Lock-Up Account pursuant to Section 6.04(c) and Section 6.12, during the fiscal quarter ending on the Quarter End Date which is two Quarter End Dates (for a total of six (6) months) prior to such Cash Sweep Date;
(C) unless otherwise agreed by the Majority Lenders, the Borrower shall prepay the Loans in full and terminate the Commitments upon the occurrence of a Change of Control after the Financial Closing Date; (D) unless otherwise agreed by the Lenders, within three (3) Business Days after any date on which any Borrower Group Member receives Net Cash Proceeds of any Issuance that exceeds $5,000,000 individually or in the aggregate in any fiscal year; provided that the foregoing shall not be apply (1) to the extent that such Net Cash Proceeds are 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 an Issuance by PSE, applicable Law or (2) to the extent that a Dividend Prohibition applies with respect to the applicable Subsidiary, except that if and to the extent that such Dividend Prohibition subsequently ceases to apply (x) on or prior to the one-year anniversary of the applicable Subsidiary’s receipt of such Net Cash Proceeds, the prepayment otherwise required by this clause (D) shall be reinstated and (y) after the one-year anniversary of the applicable Subsidiary’s receipt of such Net Cash Proceeds and if such Net Cash Proceeds equal or exceed $10,000,000 individually or in the aggregate, the prepayment otherwise required by this clause (D) shall be reinstated except to the extent that such Net Cash Proceeds (I) shall have been applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by Indebtedness of PSE or the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each FacilitySubsidiary, and the Commitments thereunder and declare all outstanding Borrowingscommitments with respect thereto have been terminated such that such Indebtedness may not be reborrowed, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.or (II) shall have been applied to fund Utility Capital Expenditures;
Appears in 1 contract
Mandatory. (a) The Revolving Loan Commitment Amount shall be reduced as set forth below.
(i) Subject to Section 2.05(b)(ii) below, if any member Following the prepayment in full of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available CashTerm Loans, the relevant Borrowers shall cause Revolving Loan Commitment Amount shall, without any further action, automatically and permanently be reduced on the date the Term Loans would otherwise have been required to be prepaid with any Net Casualty Proceeds, Net Debt Proceeds, Net Disposition Proceeds or Net Equity Proceeds, in any case in an amount equal to the amount by which the Term Loans would otherwise be required to be prepaid if Term Loans had been outstanding.
(ii) On the Stated Maturity Date and on each Quarterly Payment Date occurring during any period set forth below, the then Revolving Loan Commitment Amount shall, without any further action, automatically and permanently be reduced by an amount equal to the amount set forth below opposite the Stated Maturity Date or such Quarterly Payment Date, as applicable (unless on or prior to any such date the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (orthen Revolving Loan Commitment Amount shall have been reduced to a lesser amount, in which case the event Revolving Loan Commitment Amount shall be equal to such lesser amount): Period Amount of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i)Mandatory Commitment Reduction 04/01/03 through (and including) 03/31/04 $1,250,000 04/01/04 through (and including) 03/31/05 $2,500,000 04/01/05 through (and including) 03/31/06 $3,125,000 04/01/07 through (and including) 03/31/07 $3,750,000 04/01/07 through (and including) the Stated Maturity Date for Revolving Loans $1,875,000 provided, however, that, notwithstanding the foregoing, on the Revolving Loan Commitment Termination Date, the Revolving Loan Commitment Amount shall be zero.
(b) On each date set forth below, the then Term A Loan Commitment Amount shall, without any further action, automatically and permanently be reduced by the amount set forth opposite such reinvestment period expires)date (unless on or prior to any such date the then Term A Loan Commitment Amount shall have been reduced to a lesser amount, subject in which case the Term A Loan Commitment Amount shall be equal to such lesser amount): Date of Mandatory Amount of Mandatory Commitment Reduction Commitment Reduction June 30, 2000 $25,000,000 December 31, 2000 $25,000,000 March 31, 2001 $25,000,000 June 30, 2001 $25,000,000 provided, however, that, notwithstanding the foregoing, on the Term A Loan Commitment Termination Date, the Term A Loan Commitment Amount shall be zero; provided further, however, that if the Borrower shall have previously delivered a Borrowing Request in accordance with Section 2.05(b)(vii), an aggregate principal amount 2.3.1 in respect of Borrowings of Term A Loans in to be made on any date set forth above, the mandatory reduction of the Term A Loan Commitment Amount shall not take effect until immediately after the making of such Term A Loans, and then the Term A Loan Commitment Amount shall be reduced to an amount which is equal to the lesser of (A) the Net Available Cash from such Asset Disposition amount set forth above and (B) an the amount so as equal to ensure that (x) the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 then applicable Term A Loan Commitment Amount (immediately prior to 1.00 any Borrowing or commitment reduction) less (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Groupy) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total AssetsBorrowing.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to If the Borrower or any of its Subsidiaries Disposes of any property permitted by Section 2.05(b)(ii7.05(g) below, if any member of the Restricted Group makes any Asset Disposition that and 7.05(k) which results in the realization by such Person of Net Cash Proceeds in excess of $1,000,000 in any fiscal year or realizes any Net Cash Proceeds in excess of $1,000,000 in any fiscal year in connection with a Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of such Net Cash Proceeds within one Business Day after receipt thereof by such Person (such prepayments to be applied as set forth in clause (iii) below), unless no Event of Default has occurred and is continuing and such Person receives such Net Cash Proceeds during a fiscal quarter in which (i) sales from the Kalydeco Product for the most recently ended fiscal quarter equal or exceed $100,000,000 and (ii) the Borrower is in compliance with Section 7.12; provided, however, that, with respect to any member Net Cash Proceeds realized under a Disposition or Casualty Event described in this Section 2.03(b)(i), at the election of the Restricted Group of Net Available Cash, Borrower (as notified by the relevant Borrowers shall cause Borrower to be prepaid the Administrative Agent on or prior to the date that is five Business Days after of such Disposition or on or prior to the realization date Net Cash Proceeds are realized in connection with a Casualty Event, as the case may be), and so long as no Event of Default shall have occurred and be continuing, the Borrower or receipt by such Subsidiary may reinvest all or any member of the Restricted Group portion of such Net Available Cash Proceeds in operating assets so long as within 365 days after the receipt of such Net Cash Proceeds, such purchase shall have been consummated (oras certified by the Borrower in writing to the Administrative Agent); and provided further, in however, that an amount equal to any Net Cash Proceeds not subject to such definitive agreement or so reinvested shall be immediately applied to the event prepayment of Net Available Cash which may be reinvested the Loans as set forth below in this Section 2.05(b)(i2.03(b)(i).
(ii) 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), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Borrower shall prepay an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date that is five within one Business Days Day after receipt thereof by the Borrower or such member of the Restricted Group of Subsidiary (such net cash proceedsprepayments to be applied as set forth in clause (iii) below).
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(viiii) Each prepayment of Term Loans pursuant to this Section 2.05(b2.03(b) shall be (A) applied either (x) ratably accompanied by prior written notice to each Class the Administrative Agent of Term Loans then outstanding or (y) as requested the same, provided by a Borrower in 11 a.m. one Business Day prior to the notice delivered pursuant to Section 2.05(b)(vii)date of prepayment, to any Class or Classes of Term Loans, and (B) appliedapplied to the principal repayment installments thereof on a pro-rata basis, with respect to and each such Class for which prepayments will prepayment shall be made, in a manner determined at applied to the discretion Loans of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunderApplicable Percentages.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Within ten Business Days after financial statements have been delivered pursuant to Section 6.01(a) and the realization or receipt by any member of the Restricted Group of such Net Available Cash related Compliance Certificate has been delivered pursuant to Section 6.02(b) (or, in if later, the event of Net Available Cash date on which may such financial statements and such Compliance Certificate are required to be reinvested as set forth below in this Section 2.05(b)(idelivered), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), Borrower shall prepay an aggregate principal amount of Term Loans in an amount which is the lesser of equal to (A) 50% (as may be adjusted pursuant to the Net Available proviso below) of Excess Cash from Flow for the fiscal year covered by such Asset Disposition and financial statements commencing with the fiscal year ending on December 31, 2017, minus (B) an the sum of (1) the aggregate amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and of voluntary principal prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that at the option of the BorrowersLoans (including prepayments at a discount to par offered to all Lenders, all or any portion with credit given for the actual amount of the Net Available Cash received in connection with an Asset Disposition may be used in the business cash payment) (except prepayments of Loans under any Revolving Tranche that are not accompanied by a corresponding permanent commitment reduction of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expendituresRevolving Tranches), in each case within 12 months other than to the extent that any such prepayment is funded with the proceeds of such receiptSpecified Refinancing Debt, Refinancing Notes or any other long-term Indebtedness and such proceeds shall (2) any amount not be required to be applied to prepay such prepayment pursuant to Section 2.05(b)(viii); provided that such percentage in respect of any Excess Cash Flow Period shall be reduced to 25% or 0% if the Term Loans except First Lien Net Leverage Ratio as of the last day of the fiscal year to which such Excess Cash Flow Period relates was less than 4.00:1.00 or 3.50:1.00, respectively; provided further that no prepayment shall be required with respect to any Excess Cash Flow Period to the extent not, within 12 months of Excess Cash Flow for such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if less than $10,000,000 (and in such proceeds are not so used within 180 days from case the end of Excess Cash Flow for such 12 month period (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Loans carried forward and added (without duplication) to the extent otherwise required by Excess Cash Flow for any subsequent Excess Cash Flow Period until this proviso shall no longer apply for purposes of this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 and 3.0% of Total Assets.
(ii) Notwithstanding anything If any Asset Sale or Casualty Event (or series of related Asset Sales or Casualty Events) results in this Agreement the receipt by the Borrower or any Restricted Subsidiary of aggregate Net Cash Proceeds in excess of $10,000,000 in any fiscal year (any such transaction or series of related transactions where such threshold is exceeded (effective only upon the later of the date of consummation thereof and the date such threshold is first exceeded) being a “Relevant Transaction”), then (1) the Borrower shall give written notice to the contraryAdministrative Agent thereof promptly after the date of receipt of such Net Cash Proceeds (or, no if applicable, the date the threshold referred to above is first exceeded) and (2) except to the extent the Borrower will be required elects in such notice to make reinvest all or cause to be made any prepayment pursuant a portion of such Net Cash Proceeds in accordance with Section 7.04, the Borrower shall prepay, subject to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date.
(iii) If any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XX2.05(b)(viii), the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior (as may be adjusted pursuant to the date that is five second proviso below) of the Net Cash Proceeds received from such Relevant Transaction within 15 Business Days of receipt thereof (or within 15 Business Days after receipt by such member the later of the date the threshold referred to above is first exceeded and the date the relevant Net Cash Proceeds are received) by the Borrower or such Restricted Group Subsidiary; provided that the Borrower may use a portion of the Net Cash Proceeds received from such Relevant Transaction to prepay or repurchase any other Indebtedness that is secured by the Collateral on a first lien “equal and ratable” basis with Liens securing the Obligations to the extent such other Indebtedness and the Liens securing the same are permitted hereunder and the documentation governing such other Indebtedness requires such a prepayment or repurchase thereof with the proceeds of such net cash proceedsRelevant Transaction, to the extent not deducted in the calculation of Net Cash Proceeds, in each case in an amount not to exceed the product of (1) the amount of such Net Cash Proceeds and (2) a fraction, the numerator of which is the outstanding principal amount of such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Section 1.08) and the denominator of which is the aggregate outstanding principal amount of Term Loans and such other Indebtedness (or to the extent such amount is not in Dollars, such equivalent amount of such Indebtedness converted into Dollars as determined in accordance with Article I); provided further that, so long as no Event of Default shall have occurred and be continuing or would result therefrom, such prepayment percentage shall be reduced from 100% to 50% if, on a Pro Forma Basis after giving effect to such Asset Sale or Casualty Event, as the case may be, and the use of proceeds therefrom, the First Lien Net Leverage Ratio would be equal to or less than 4.00:1.00; provided further that only the amount of Net Cash Proceeds in excess of $10,000,000 in any fiscal year shall be subject to prepayment pursuant to this Section 2.05(b)(ii).
(iviii) If (A) Upon the incurrence or issuance by the Borrower or any Borrower Incurs or issues Restricted Subsidiary of any Refinancing Notes, any Specified Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause any Indebtedness not expressly permitted to be prepaid incurred or issued pursuant to Section 7.01, the Borrower shall prepay an aggregate principal amount of Term Loans Loan Tranches in an amount equal to 100% of all net cash proceeds Net Cash Proceeds received therefrom on or prior to the date which is five Business Days after the immediately upon receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii), to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected thereof by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) any Additional Facility Joinder Agreement or Extension Amendment, may provide (including on an optional basis as elected by the Borrower) for a less than ratable application of prepayments to any Class of Term Loans established thereunder.
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a BorrowerRestricted Subsidiary.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.
Appears in 1 contract
Samples: Credit Agreement
Mandatory. (i) Subject to Section 2.05(b)(ii) below, if any member of the Restricted Group makes any Asset Disposition that results in the realization or receipt by any member of the Restricted Group of Net Available Cash, the relevant Borrowers shall cause to be prepaid on or prior to the date that is five Business Days after the realization or receipt by any member of the Restricted Group of such Net Available Cash (or, in the event of Net Available Cash which may be reinvested as set forth below in this Section 2.05(b)(i), on the date such reinvestment period expires), subject to Section 2.05(b)(vii), an aggregate principal amount of Term Loans in an amount which is the lesser of (A) the Net Available Cash from such Asset Disposition and (B) an amount so as to ensure that the Consolidated Senior Secured Net Leverage Ratio does not exceed 5.00 to 1.00 (on a pro forma basis after taking into account such Asset Dispositions and prepayments (but ignoring such Net Available Cash for purposes of determining compliance)); provided that that, at the option of the Borrowers, all or any portion of the Net Available Cash received in connection with an Asset Disposition may be used in the business of the Restricted Group, including to make acquisitions, investments, capital expenditures or operational expenditures, in each case within 12 months of such receipt, and such proceeds shall not be required to be applied to prepay the Term Loans except to the extent not, within 12 months of such receipt, so used or contractually committed to be so used (it being understood that if any portion of such proceeds is not so used within such 12 month period but within such 12 month period is contractually committed to be used, then if such proceeds are not so used within 180 days from the end of such 12 month period, provided that, such 180-day period may be extended if any such contractual commitment is terminated or rescinded by one additional 180-day period following the date of such termination or rescission) (the “Reinvestment End Date”)), then such remaining portion shall be required to prepay the Term Loans (to the extent otherwise required by this Section 2.05(b)(i)), as of the date or such termination; provided, further, that, if at the time that any such prepayment would be required, any Borrower (or any member of the Restricted Group) is required to offer to prepay or repurchase other Senior Secured Indebtedness pursuant to the terms of the documentation governing such Indebtedness with the net proceeds of such Asset Disposition (such Senior Secured Indebtedness required to be offered to be so repurchased, “Other Applicable Indebtedness”), then the Borrowers may apply such Net Available Cash on a pro rata basis (determined on the basis of the aggregate outstanding principal amount of the Term Loans and Other Applicable Indebtedness at such time; provided, further, that the portion of such net proceeds allocated to the Other Applicable Indebtedness shall not exceed the amount of such net proceeds required to be allocated to the Other Applicable Indebtedness pursuant to the terms thereof, and the remaining amount, if any, of such net proceeds shall be allocated to the Term Loans in accordance with the terms hereof) to the prepayment of the Term Loans and to the repurchase or prepayment of Other Applicable Indebtedness, and the amount of prepayment of the Term Loans that would have otherwise been required pursuant to this Section 2.05(b)(i) shall be reduced accordingly; provided, further, that to the extent the holders of Other Applicable Indebtedness decline to have such indebtedness repurchased or prepaid, the declined amount shall promptly (and in any event within ten Business Days after the date of such rejection) be applied to prepay the Term Loans in accordance with the terms hereof; provided, further, however, that no such prepayment under this Section 2.05(b)(i) shall be required where the amount of any such prepayment would be less than the greater of $200,000,000 100.0 million and 3.05.0% of Total Assets.
(ii) Notwithstanding anything in this Agreement to the contrary, no Borrower will be required to make or cause to be made any prepayment pursuant to Section 2.05(b)(i) above if the Financial Covenant was not required to be tested for the most recent Test Period ending prior to the Reinvestment End Date[Reserved].
(iii) If (A) prior to the SPV Structure Termination Date, any Loan Party or any member of the Restricted Group Incurs or issues any Indebtedness after the 2020 2021 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Xxxxx XXAnnex II, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date that is five Business Days after receipt by such Loan Party or member of the Restricted Group, as applicable, of such net cash proceeds and (B) on or after the SPV Structure Termination Date, any member of the Restricted Group Incurs or issues any Indebtedness after the 2021 Amendment Effective Date not permitted to be Incurred or issued pursuant to Section 4.09 of Annex IV, the Borrowers shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on a date that is five Business Days from receipt by such member of the Restricted Group of such net cash proceeds.
(iv) If any Borrower Incurs or issues any Refinancing Term Loans resulting in net cash proceeds (as opposed to such Refinancing Term Loans arising out of an exchange of existing Term Loans for such Refinancing Term Loans), such Borrower (or the Company on its behalf) shall cause to be prepaid an aggregate principal amount of Term Loans in an amount equal to 100% of all net cash proceeds received therefrom on or prior to the date which is five Business Days after the receipt by such Borrower of such net cash proceeds.
(v) If for any reason the aggregate Outstanding Amount of Revolving Credit Loans, Swing Line Loans and L/C Obligations, in each case under any Class of Revolving Credit Commitments at any time exceeds the aggregate Revolving Credit Commitments of such Class then in effect, the relevant Borrower shall promptly prepay Revolving Credit Loans and Swing Line Loans and/or Cash Collateralize any L/C Obligations under such Class of Revolving Credit Commitments in an aggregate amount equal to such excess; provided that such Borrower shall not be required to Cash Collateralize any L/C Obligations pursuant to this Section 2.05(b)(v) unless, after giving effect to the prepayment in full of the applicable Revolving Credit Loans and Swing Line Loans, the aggregate Outstanding Amount under such Class of Revolving Credit Commitments exceeds the aggregate Revolving Credit Commitments of such Class then in effect.
(vi) Each prepayment of Term Loans pursuant to this Section 2.05(b) shall be (A) applied either (x) ratably to each Class of Term Loans then outstanding or (y) as requested by a Borrower in the notice delivered pursuant to Section 2.05(b)(vii)clause (vii) below, to any Class or Classes of Term Loans, (B) applied, with respect to each such Class for which prepayments will be made, in a manner determined at the discretion of the applicable Borrower in the applicable notice and (C) paid to the Appropriate Lenders in accordance with their respective Pro Rata Share (or other applicable share provided by this Agreement) of each such Class of Term Loans, subject to Section 2.05(b)(vii). Notwithstanding clause (A) hereinabove, (1) in the case of prepayments pursuant to Section 2.05(b)(iv), such prepayment shall be applied in accordance with this Section 2.05(b)(vi) solely to those applicable Classes of Term Loans selected by the applicable Borrower and specified in the applicable Refinancing Amendment or notice (i.e., the applicable Refinanced Debt), and (2) in the case of prepayments pursuant to Section 2.05(b)(i) and (iii), (x) such prepayments may not be directed to a later maturing Class of Term Loans without at least a pro rata repayment of any earlier maturing Classes of Term Loans (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement Agreement, Extension Amendment or Extension Amendment, may provide Refinancing Amendment (including on an optional basis as elected by the Borrower) for a less than ratable application that one or more other Classes of later maturing Term Loans may be prepaid prior to such Class of earlier maturing Term Loans), and (y) in the event that there are two or more outstanding Classes of Term Loans with the same Maturity Date, such prepayments may not be directed to any such Class of Term Loans established thereunderwithout at least a pro rata repayment of any Classes of Term Loans maturing on the same date (except that any Class of Additional Facility Loans that are Term Loans, Extended Term Loans, or Refinancing Term Loans may provide in the applicable Additional Facility Joinder Agreement, Extension Amendment or Refinancing Amendment (including on an optional basis as elected by the Borrower) that one or more other Classes of Term Loans with the same Maturity Date may be prepaid prior to such Class of Term Loans maturing on the same date).
(vii) A Borrower shall notify the Administrative Agent in writing of any mandatory prepayment of Term Loans required to be made by such Borrower pursuant to clauses (i) through (v) of this Section 2.05(b) at least two Business Days prior to the date of such prepayment (unless otherwise agreed by the Administrative Agent); provided that, subject to the payment when due of any amounts owing as a result thereof pursuant to Section 3.10, such Borrower may rescind (or delay the date of prepayment identified in) such notice if such prepayment would have resulted from a refinancing of all or any portion of the applicable Facility or other conditional event, which refinancing or other conditional event shall not be consummated or shall otherwise be delayed. Each such notice shall specify the date of such prepayment and provide a reasonably detailed calculation of the aggregate amount of such prepayment to be made. The Administrative Agent will promptly notify each Appropriate Lender of the contents of the applicable Borrower’s prepayment notice and of such Appropriate Lender’s Pro Rata Share of the prepayment. Each Term Lender may reject all (or a portion of its Pro Rata Share of any mandatory prepayment (such declined amounts, the “Declined Proceeds”other applicable share provided by this Agreement) of Term Loans required to be made pursuant to Section 2.05(b)(ii) and Section 2.05(b)(iii) by providing written notice (each, a “Rejection Notice”) to the Administrative Agent and the applicable Borrower no later than 5:00 p.m. one Business Day after the date of such Xxxxxx’s receipt of notice from the Administrative Agent regarding such prepayment. Each Rejection Notice from a given Lender shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Term Lender fails to deliver a Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the mandatory prepayment of Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory prepayment of Term Loans. Any Declined Proceeds shall be offered to the Term Lenders not so declining such prepayment on a pro rata basis in accordance with the amounts of the Term Loans of such Lenders (with such non-declining Term Lenders having the right to decline any prepayment with Declined Proceeds at the time and in the manner specified by the Administrative Agent). To the extent such non-declining Term Lenders elect to decline their Pro Rata Share of such Declined Proceeds, any Declined Proceeds remaining thereafter shall be retained by a Borrower.
(viii) Notwithstanding any other provisions of this Section 2.05, (A) to the extent that any or all of the Net Available Cash of any Asset Disposition by a member of the Restricted Group is prohibited or delayed by applicable local Law from being repatriated to the jurisdiction of the relevant Borrower, the portion of such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group so long, but only so long, as the applicable local Law will not permit repatriation to the jurisdiction of the relevant Borrower (each Borrower hereby agreeing to use commercially reasonable efforts to cause the applicable member of the Restricted Group to promptly take all actions reasonably required by the applicable local law to permit such repatriation), and once such repatriation of any of such affected Net Available Cash is permitted under the applicable local law, such repatriation will be promptly effected and an amount equal to such repatriated Net Available Cash will be promptly (and in any event not later than five Business Days after such repatriation) applied (net of additional Taxes payable or reserved against as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.05(b) to the extent provided herein and (B) to the extent that a Borrower has determined in good faith that repatriation of any of or all the Net Available Cash of any such Asset Disposition would have material adverse tax consequences (as determined in good faith by such Borrower) with respect to such Net Available Cash, such Net Available Cash so affected will not be required to be applied to repay Term Loans at the times provided in this Section 2.05(b) but may be retained by the applicable member of the Restricted Group.
(ix) Upon becoming aware of a Change of Control:
(A) the Company or a Permitted Affiliate Parent, as applicable, shall promptly notify the Administrative Agent; and
(B) if the Required Lenders so require, the Administrative Agent shall, by not less than 30 Business Days’ notice to the Company, cancel each Facility, and the Commitments thereunder and declare all outstanding Borrowings, together with accrued interest and all other amounts accrued under the Loan Documents immediately due and payable, whereupon each Facility, and the Commitments thereunder, will be cancelled and all such outstanding and accrued amounts will become immediately due and payable.the
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