Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety. (b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent. (c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans. (d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent. (e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b). (f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid. (g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 5 contracts
Samples: Credit Agreement (Atkore International Group Inc.), Credit Agreement (Atkore International Group Inc.), Credit Agreement (Atkore International Group Inc.)
Optional and Mandatory Prepayments. (a) Each Borrower may, upon notice to Operations Agent not later than 11:00 a.m. (Boston, Massachusetts, time) on the Business Day of the Borrowers may such prepayment (whichnotice shall not thereafter be revocable by such Borrower), prepay any Loans in whole at any time and time, or from time to time prepay in part in an aggregate principal amount not less than $100,000 and in larger integral multiples of $10,000, by paying the Loans made principal amount to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior be prepaid together with accrued interest thereon to the date of prepayment. Each such optional prepayment (in shall be applied to prepay ratably the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified several Lenders included in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entiretyBorrowing.
(b) On any day Upon receipt of a notice of prepayment pursuant to SUBSECTION (other than during an A), Operations Agent Advance Period) on which the Aggregate shall promptly notify Administrative Agent and each Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount contents thereof and of cash and/or Cash Equivalents equal to the amount each Lender's ratable share of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agentprepayment.
(c) The Borrowers If at any time the aggregate principal amount of all Loans outstanding to any Borrower exceeds the Maximum Amount for such Borrower, such Borrower immediately shall prepay the principal amount of one or more such Loans (together with accrued interest thereon) as may be necessary so that after such prepayment the aggregate principal amount of all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loansto such Borrower does not exceed the Maximum Amount for such Borrower.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if If at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the aggregate principal amount of such Eurodollar all Loans or BA Equivalent Loans not immediately prepaid), outstanding to be held as security for all Borrowers exceeds the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) aggregate Commitment Amounts or (ii) make a prepayment the aggregate principal amount of all Loans made by any Lender exceeds the Commitment Amount of such Lender, each Borrower that has an outstanding Loan shall immediately prepay such Borrower's Pro Rata Share of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an principal amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of one or more such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (iaccrued interest thereon) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicableeliminate such excess.
Appears in 4 contracts
Samples: Credit Agreement (Usaa Mutual Fund Inc), Credit Agreement (Usaa Tax Exempt Fund Inc), Credit Agreement (Usaa Investment Trust)
Optional and Mandatory Prepayments. (a) Each of the Borrowers Borrower may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accounta Prime Rate Loan, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior with accrued interest to the date of such prepayment on the amount prepaid, provided that, each partial prepayment shall be in a principal amount of not less than One Hundred Thousand Dollars ($100,000) (each such payment, an "Optional Prepayment"). Eurodollar Loans may only be prepaid at end of any Interest Period.
(b) During the term of this Agreement, Borrower shall make mandatory prepayments (i) in an amount equal, during any Fiscal Year, to the net proceeds received in excess of $250,000 in the case aggregate, from the sale (other than a sale in the ordinary course of Eurodollar Loans business) of all or BA Equivalent Loans and Reimbursement Obligations outstanding any part of the assets of any Restricted Subsidiary; (ii) in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior an amount equal to the date net proceeds received by Borrower or any Restricted Subsidiary from the sale or issuance of prepayment any debt instrument, and (iii) in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative an amount equal to the Administrative Agent (in net proceeds received by Borrower or any Restricted Subsidiary under any insurance policy, to the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specifyextent that, in the case of any prepayment property and casualty insurance, such proceeds are not used by Borrower or such Restricted Subsidiary to repair or replace the property which was the subject of Loanssuch insurance claim, with a reasonable period of time but in no event later than six (6) months from the date such proceeds are received by the Borrower or such Subsidiary, unless Borrower or such Subsidiary has taken action to affect such repair or replacement, as determined by the Agent in good faith, or unless otherwise agreed to by the Agent. So long as the Intercreditor Agreement remains in effect, notwithstanding anything to the contrary contained herein, the identity Banks shall be entitled to receive their Ratable Portion of the prepaying Borrower, the date prepayments required to be paid under this Section 2.07(b) and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, if Agent shall be in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any proceeds of such notice prepayments in excess of the Administrative Bank's Ratable Portion of such prepayments (the "Excess Prepayments"), Agent shall promptly notify each affected Lender thereofdeliver such Excess Prepayments to the Noteholder Agent (as defined in the Intercreditor Agreement). If any With respect to prepayments received by the Agent for the ratable benefit of Banks under this Section 2.07(b), such notice is given, the amount specified in such notice prepayments shall be due and payable on applied first, to the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end repayment of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the then outstanding Revolving Credit Loans and second, at the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, firstdiscretion of Agent, to payment be held as Cash Collateral to secure Letter of the Swingline Loans then outstandingCredit Obligations; provided that, second, to payment any mandatory prepayment of the Revolving Credit Loans then outstanding, third, or held as Cash Collateral to payment secure Letters of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation Credit hereunder shall permanently reduce the Supplemental Amount and the Revolving Credit Commitment on terms reasonably satisfactory a dollar for dollar basis to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) extent such proceeds are received by the Agent in accordance with the terms of the Intercreditor Agreement (with respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples secured Letter of $1,000,000 or Cdn$1,000,000, Credit Obligations such reduction will occur as applicable, provided that, notwithstanding Letter of Credit Obligations are satisfied by the foregoing, any Loan may be prepaid in its entiretyCash Collateral).
(bc) On To the extent that, at any day given time, (other than during an Agent Advance Periodi) on which the Aggregate Lender Exposure Outstanding Credit Facilities exceed the then effective Revolving Credit Commitment, or (ii) the unpaid balance Outstanding Credit Facilities exceed the sum of Extensions the Availability for Revolving Credit Loans plus the Letter of Credit toObligations, or (iii) the Revolving Credit Loans exceed the Availability for Revolving Credit Loans, or (iv) the Obligations exceed any of the other borrowing limitations set forth in this Agreement, in each case the Borrower shall immediately pay to the Agent for the account of, ratable benefit of the Borrowers exceeds Banks a mandatory prepayment of the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess and/or Borrower shall immediately provide Cash Collateral for the Letter of Credit Obligations to the extent required to eliminate such excess. IfAny Cash Collateral deposited with the Agent for the ratable benefit of the Banks in accordance with the terms of this Section 2.07 shall be credited, for purposes of the calculation of Availability for Revolving Credit Loans under Section 2.01 hereof, against the outstanding Letter of Credit Obligations subject to Section 2.07(d) hereof.
(d) In the event Eurodollar Loans are outstanding at the time of any mandatory prepayment under this Section 2.07 hereof, such mandatory prepayment shall be applied first to reduce any Prime Rate Loans outstanding to zero. Any remaining mandatory prepayment amount shall be deemed to be Cash Collateral and shall be deposited by Agent in a segregated account to be applied to the Eurodollar Loans. The Cash Collateral in such segregated account shall represent a reduction of the Eurodollar Loans then outstanding and such amount shall be credited against Revolving Credit Loans for purposes of calculating Availability for Revolving Credit Loans. Agent shall hold such amounts in such segregated account and use it to pay the Eurodollar Loans as such loans mature. If the amounts in the segregated account are sufficient to pay (at maturity) the then outstanding Eurodollar Loans, any remaining mandatory prepayment shall then be applied to Letter of Credit Obligations in accordance with Section 2.07(c) hereof.
(e) Borrower may, without premium or penalty, reduce the Revolving Credit Commitment to an amount not less than the sum of the aggregate unpaid principal amount of all Revolving Credit Loans and Letter of Credit Obligations then outstanding. Each such reduction (i) shall be in an amount which is an integral multiple of $1,000,000, (ii) shall be made providing not less than ten (10) Banking Days written notice to Agent, which notice shall state the amount of the payment to be made and shall conform to the amount of the Revolving Credit Commitment after giving effect to such payment, (iii) shall reduce, on a permanent basis, the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day Commitment by an amount of cash and/or Cash Equivalents equal to the amount of such excess reduction, and (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to iv) shall be held as security for all obligations of the Borrowers to the Issuing Lenders and irrevocable. Once reduced the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall Commitment may not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any increased. Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of may reduce the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal Commitment to a portion (up to 100%) of $0 provided the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Revolving Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaidTermination Date occurs simultaneously therewith.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 4 contracts
Samples: Credit Agreement (Hampshire Group LTD), Credit Agreement (Hampshire Group LTD), Credit Agreement (Hampshire Group LTD)
Optional and Mandatory Prepayments. (a) Each of the Borrowers Borrower may at any time and from time to time prepay the Loans made by the Lenders to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountsuch Borrower, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice substantially in the form of Exhibit N delivered by the Borrower Representative to the Administrative Agent prior to no later than 11:00 A.M., New York City time time, three Business Days prior to the date of prepayment (thereto, in the case of Eurodollar Loans or BA Equivalent Loans Loans, and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to no later than 11:00 A.M., New York City time at least one Business Day prior to time, on the date of requested prepayment (date, in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such , which notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, specify the date and amount of prepayment, the identity name of the applicable Letter Borrower and whether the prepayment is of Credit Eurodollar Loans or Letters ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of Credit and the amount allocable Interest Period applicable thereto, such Borrower shall also pay any amounts owing pursuant to each of such Reimbursement ObligationsSection 2.14. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if except in the case of Loans that are ABR Loans) accrued interest to such date on the amount prepaid. Partial prepayments of ABR Loans and Eurodollar Loans for all Borrowers shall be in an aggregate principal amount of $5,000,000 or a Eurodollar Loan or BA Equivalent Loan is prepaid other than at whole multiple of $1,000,000 in excess thereof (or, in the end case of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12ABR Loans, the Revolving Credit Loans and entire principal amount thereof).
(a) If, on any date, the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding aggregate Secured L/C Obligation Obligations of any Borrower exceed the Borrowing Base of such Borrower on terms reasonably satisfactory such date, such Borrower (or the Borrower Representative) shall within five Business Days of such date pay or deliver to the Administrative Agent; providedCustodian, further, that any pro rata calculations required to be made held in accordance with the Security Agreement and the applicable Collateral Account Control Agreement, an amount of cash and/or Eligible Securities sufficient to cause the Borrowing Base of such Borrower to be at least equal to the aggregate Secured L/C Obligations of such Borrower. If such payment or delivery is not made, the applicable Borrower shall pay the fee applicable to Unsecured Letters of Credit, rather than the fee applicable to Secured Letters of Credit, pursuant to this Subsection 4.4(aSection 3.3(a) in with respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant the portion of such Secured L/C Obligations that is more than the Borrowing Base until such time as the Borrowing Base of such Borrower is at least equal to this Subsection 4.4(a) shall be in multiples the aggregate Secured L/C Obligations of $1,000,000 or Cdn$1,000,000, as applicable, such Borrower; provided that, notwithstanding if a portion, but not all, of the foregoingSecured L/C Obligations with respect to a Secured Letter of Credit would be subject to the fee applicable to Unsecured Letters of Credit pursuant to the preceding clause of this sentence, any Loan may such Secured Letter of Credit will be prepaid in its entiretysubject to the fee applicable to Unsecured Letters of Credit.
(b) On If, on any day (other than during an Agent Advance Period) on which date, the Aggregate Lender Exposure or the unpaid balance of Total Extensions of Credit to, or for outstanding on such date exceed 102% of the account ofTotal Commitments in effect on such date, the Borrowers exceeds shall, upon demand by the Borrowing Base Administrative Agent, promptly (based on but in any event, within three Business Days of the Borrowing Base Certificate last delivereddate of the Company’s receipt of such demand from the Administrative Agent) or prepay any then outstanding Loans and/or cash collateralize to the total Commitments at such time, satisfaction of the Borrowers shall prepay on such day the principal Administrative Agent any then outstanding Letters of outstanding Revolving Credit Loans in an aggregate principal and/or face amount equal to such excess. Ifthat, after giving effect to thereto and treating such cash collateralized Letters of Credit as being not then outstanding, the Total Extensions of Credit do not exceed the Total Commitments. Any prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments Eurodollar Loan pursuant to Subsection 4.4(bthis Section 2.5(c) shall be applied, first, accompanied by interest accrued and unpaid to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding the date of such prepayment on the principal so prepaid and, last, to cash collateralize all L/C Obligations if such prepayment is made on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid day other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect applicable to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as Loan, the applicable Borrower shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the also pay any amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits owing pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaidSection 2.14.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 3 contracts
Samples: Credit Agreement (Aspen Insurance Holdings LTD), Credit Agreement (Aspen Insurance Holdings LTD), Credit Agreement (Aspen Insurance Holdings LTD)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Parent Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Eurocurrency Loans outstanding in Dollars or BA Equivalent Loans any Designated Foreign Currency and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day Day’s irrevocable notice by the Parent Borrower Representative to the Administrative Agent (in the case of (x) Swingline ABR Loans and other than Swing Line Loans outstanding in Dollars, (y) Reimbursement Obligations outstanding in Dollars or a and (z) any Swing Line Loans outstanding in any Designated Foreign Currency) or same-day irrevocable notice by the Parent Borrower to the Administrative Agent (in the case of Swing Line Loans outstanding in Dollars)). Such notice shall specify, specifying, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Tranche B Dollar Term Loans, Tranche B Euro Term Loans, Revolving Credit Loans or Swingline Swing Line Loans, or a combination thereof, and (ii) of Eurodollar Eurocurrency Loans, BA Equivalent Swing Line Foreign Currency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Eurocurrency Loan or BA Equivalent Swing Line Foreign Currency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 4.12 and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this subsection (x) shall be made pro rata between the Term Loans according to the respective outstanding principal amounts thereof (i.e., each Tranche of outstanding Term Loans shall be required to be prepaid on a pro rata basis) and (y) shall be applied pro rata to the respective installments of principal thereof, provided that notwithstanding clauses (x) and (y) above, any such partial prepayment may, at the option of the Parent Borrower, be first allocated to the Term Loans pro rata based upon the aggregate amount of the installments thereof due in the next twelve months and then applied, at the option of the Parent Borrower, against any of such installments of the Term Loans, and, thereafter, the remainder of such partial prepayment shall be allocated and applied as provided in clauses (x) and (y) above, and (ii) the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that than any pro rata calculations required to be made pursuant to this Subsection subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof (or, in the case of Eurocurrency Loans outstanding in any Designated Foreign Currency or Cdn$1,000,000Swing Line Foreign Currency Loans, as applicablethe Dollar Equivalent of an aggregate principal amount of at least approximately $5,000,000), provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On If on or after the Closing Date (i) the Parent Borrower or any day of its Subsidiaries shall incur Indebtedness for borrowed money (other than during Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified in subsection 8.2) pursuant to a public offering or private placement or otherwise, (ii) the Parent Borrower or any of its Subsidiaries shall make an Agent Advance PeriodAsset Sale pursuant to subsection 8.6(i), (iii) on which a Recovery Event occurs or (iv) the Aggregate Lender Exposure Parent Borrower or the unpaid balance any of Extensions of Credit toits Subsidiaries shall enter into a Sale and Leaseback Transaction, or for the account ofthen, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timein each case, the Borrowers shall prepay on such day prepay, in accordance with subsection 4.4(f), the principal of outstanding Revolving Credit Loans and cash collateralize the L/C Obligations in an amount equal to: (x) in the case of the incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof minus any Permitted Acquisition Amount; (y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts; and (z) in the case of any such Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds except that, in the case of clause (x), if any such Net Cash Proceeds are eligible to be used to pay the cash consideration for an acquisition permitted by subsection 8.10(b) in accordance with the definition of the term “Permitted Acquisition Amount” in subsection 1.1 and the Parent Borrower has not elected to so apply such proceeds, such prepayment to be made on the earlier of (1) the date occurring 90 days after the receipt of such Net Cash Proceeds and (2) the date on which the Parent Borrower shall have determined not to acquire any business, assets or Capital Stock in an acquisition permitted by subsection 8.10(b) with all or any portion of such Net Cash Proceeds and except that, in the case of clause (y), if any such Net Cash Proceeds are eligible to be reinvested in accordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Parent Borrower has not elected to reinvest such proceeds, such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Parent Borrower to such excess. If, after giving effect is delivered to the prepayment Administrative Agent in accordance with such definition and (2) the last day of all outstanding Revolving Credit Loansthe period within which a certificate setting forth such election is required to be delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 9.
(c) Commencing March 31, 2006, and on each March 31 thereafter, the aggregate amount Parent Borrower shall apply toward the prepayment, in accordance with subsection 4.4(f), of the Loans and the cash collateralization of the L/C Obligations exceeds the Borrowing Base at such time (based ECF Percentage of the Parent Borrower’s Excess Cash Flow for the fiscal year ending on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agentimmediately preceding December 31.
(cd) The Borrowers Parent Borrower shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(de) If the Parent Borrower or any of its Subsidiaries enters into any Permitted Receivables Transaction, on the next Business Day the Parent Borrower shall prepay, in accordance with subsection 4.4(f), the Loans and cash collateralize the L/C Obligations in an aggregate amount equal to the Permitted Receivables Transaction Prepayment Amount in respect of such Permitted Receivables Transaction.
(f) Prepayments pursuant to Subsection subsections 4.4(b), 4.4(c) and 4.4(e) shall be applied, first, to prepay Swingline Term Loans then outstanding, second, to prepay Swing Line Loans then outstanding, third, to prepay Revolving Credit Loans then outstanding, thirdfourth, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding L/C Obligations on terms reasonably satisfactory to the Administrative Agent. Prepayments of Term Loans pursuant to subsections 4.4(b), 4.4.(c) and 4.4(e) shall be applied (i) pro rata (based on outstanding principal amount) to the Term Loans and (ii) pro rata to the respective installments of principal thereof; provided that notwithstanding clauses (i) and (ii) above, any such payment may, at the option of the Parent Borrower, be first allocated to the Term Loans pro rata based upon the aggregate amount of the installments thereof due in the next twelve months and then applied, at the option of the Parent Borrower, against any of such installments of the Term Loans and, thereafter, the remainder of such prepayment shall be allocated and applied as provided in clauses (i) and (ii) above; provided, further, that any pro rata calculations required to be made pursuant to this subsection 4.4(f) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis.
(eg) For avoidance Amounts prepaid on account of doubtTerm Loans pursuant to subsection 4.4(a), the 4.4(b), 4.4(c) or 4.4(e) may not be reborrowed.
(h) The Revolving Credit Commitments shall not be correspondingly permanently reduced by the amount of any all prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections subsections 4.4(b), 4.4(c) or 4.4(e).
(fi) Notwithstanding the foregoing provisions of this Subsection subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(asubsection 4.4(b), 4.4(c) or 4.4(b4.4(e) would result, after giving effect to the procedures set forth in this Agreement, in any the Parent Borrower incurring breakage costs under Subsection subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), ) to be held as security for the obligations of such the Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Parent Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Revolving Credit Commitments that would reduce the aggregate amount of the Available Loan Revolving Credit Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 2 contracts
Samples: Credit Agreement (VWR International, Inc.), Credit Agreement (VWR International, Inc.)
Optional and Mandatory Prepayments. (a) (i) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection Section 4.12, without premium or penalty, upon irrevocable at least three Business Days’ notice by the applicable Borrower Representative to the Administrative Agent prior to 11:00 A.M.or the Canadian Agent, New York City time three Business Days prior to the date of prepayment as applicable (in the case of Eurodollar Eurocurrency Loans outstanding in Dollars or any Designated Foreign Currency, Bankers’ Acceptances or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable Day’s notice by the applicable Borrower Representative to the Administrative Agent or the Canadian Agent, as applicable (in the case of (x) Swingline ABR Loans other than Swing Line Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyCanadian Dollars) or same-day notice by the applicable Borrower to the Administrative Agent or the Canadian Agent, as applicable (in the case of Swing Line Loans). Such notice shall be irrevocable except as provided in Section 4.4(f). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and the Tranches being prepaid and if a combination thereof the principal amount allocable to each, and whether the prepayment is (i) of Revolving Credit Loans or Swingline Eurocurrency Loans, or a combination thereof, and (ii) of Eurodollar LoansBankers’ Acceptances, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Section 4.4(f)) be due and payable on the date specified therein, together with (if a Eurodollar Loan Eurocurrency Loan, Bankers’ Acceptances or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection Section 4.12, . Partial prepayments of the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding Bankers’ Acceptances or L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection Section 4.4(a) in respect to any Loan denominated in Canadian Dollars or a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection Section 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000(or, as applicablein the case of (i) partial prepayments made by the Canadian Borrowers, Cdn$1,000,000 and (ii) Eurocurrency Loans outstanding in any Designated Foreign Currency, the Dollar Equivalent of an aggregate principal amount of at least approximately $1,000,000), provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 2 contracts
Samples: Credit Agreement (Hertz Corp), Credit Agreement (Hertz Global Holdings Inc)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty but including, for the avoidance of doubt, accrued interest, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans Loans) or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section SectionSubsection 4.4(a) and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided thatfurther, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 2 contracts
Samples: Abl Credit Agreement (Core & Main, Inc.), Abl Credit Agreement (Core & Main, Inc.)
Optional and Mandatory Prepayments. (a) Each The Borrower may on the last day of any Interest Period with respect thereto (or at other times with the Borrowers may payment of applicable breakage costs), in the case of Eurodollar Loans, or at any time and from time to time time, in the case of Alternate Base Rate Loans, prepay the Revolving Credit Loans, the Initial Term Loans, the Additional Term Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountany series, or any combination thereof, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty (except as set forth in Section 4.1(e) below), upon at least four Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.Agent, New York City time three Business Days prior to the date of prepayment specifying (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loansi) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and prepayment, (ii) whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Alternate Base Rate Loans or a combination thereof, and, in each case if of a combination thereof, the principal amount allocable to each each, (iii) whether the prepayment is of Revolving Credit Loans, Initial Term Loans, the Additional Term Loans of any series, or any combination thereof, and, in the case if of any prepayment of Reimbursement Obligationsa combination thereof, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each and (iv) if the prepayment includes Term Loans, the amount allocable, if any, to the Initial Term Loans or the Additional Term Loans of such Reimbursement Obligationseach series. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Applicable Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid in the case of prepayment of Term Loans. Partial prepayments (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end x) of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples an aggregate principal amount of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, a whole multiple thereof and (y) of any Loan may Term Loans shall be prepaid in its entiretyan aggregate principal amount of $5,000,000 or a whole multiple thereof.
(b) On If on any day date (other than during an Agent Advance Period) including any date on which a certificate of a Responsible Officer of the Borrower is delivered pursuant to subsection 7.2(b)) the sum of the Aggregate Lender Exposure or the unpaid balance of Outstanding Revolving Credit Extensions of Credit tothen outstanding exceeds the then aggregate Revolving Credit Commitments, then, without notice or for the account ofdemand, the Borrowers exceeds Borrower shall promptly prepay the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. IfThe Borrower may, after giving effect subject to the prepayment terms and conditions of all outstanding Revolving Credit Loansthis Agreement, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to reborrow the amount of such excess (up to a maximum amount equal to such L/C Obligations at such timeany prepayment made under this subsection 4.1(b), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers application of any prepayment of Initial Term Loans or Additional Term Loans of any series pursuant to subsection 4.1(a) shall prepay all Swingline be made to the remaining installments of such Initial Term Loans then outstanding simultaneously with each borrowing by them or Additional Term Loans of Revolving Credit Loanssuch series, as applicable, in the inverse order of their maturity.
(d) Prepayments The application of any prepayment pursuant to Subsection 4.4(bsubsection 4.1(b) shall be applied, first, made first to prepay Swingline Alternate Base Rate Loans then outstanding, second, and second to prepay Revolving Credit Eurodollar Loans. Each prepayment of the Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory under subsection 4.1(b) (other than Alternate Base Rate Loans) shall be accompanied by accrued interest to the Administrative Agentdate of such prepayment on the amount prepaid.
(e) For avoidance With respect to any optional prepayment made by the Borrower in connection with the Initial Term Loans on or before the first anniversary of doubtthe Restatement Closing Date, the Commitments Borrower shall not be correspondingly reduced by pay to the Administrative Agent, for the account of the applicable Initial Term Loan Lenders, a prepayment in an amount (including principal and premium) equal to 101% of the aggregate principal amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Initial Term Loans to be prepaid as set forth pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result notice of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory provided to the Administrative Agent with such cash collateral pursuant to be directly applied upon Section 4.1(a) above plus all accrued, unpaid interest to the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 2 contracts
Samples: Quarterly Report, Credit Agreement (El Paso Energy Partners Lp)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time time, upon notice to the Administrative Agent, prepay the Loans made to it and the Reimbursement Obligations Unreimbursed Amounts in respect of Letters of Credit and Bankers’ Acceptances issued or documented for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable provided that such notice must be received by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time not later than 1:00 p.m. (i) three Business Days prior to any date of prepayment of Eurocurrency Loans denominated in Dollars, (ii) four Business Days (or five Business Days, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Loans denominated in Alternative Currencies, and (iii) on the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Base Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such Each such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Term B Loans, Revolving Credit Loans or Swingline Swing Line Loans, or a combination thereof, and (ii) in the case of Eurodollar Revolving Loans, BA Equivalent of the relevant Borrowing of such Loans to be repaid, and (iii) of Eurocurrency Loans, ABR Loans or Canadian Prime Base Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement ObligationsUnreimbursed Amounts, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit or Bankers’ Acceptance or Bankers’ Acceptances and the amount allocable to each of such Reimbursement ObligationsUnreimbursed Amounts. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof; in the event such prepayment is of a Loan denominated in an Alternative Currency, the Administrative Agent shall also notify each Alternative Currency Funding Lender with respect to such Loan of its Alternative Currency Funding Pro Rata Share of such payment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 4.10 and, in the case of prepayments of the Term B Loans only, accrued interest to such date on the amount prepaid. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of prepayment under this subsection 4.2(a) if such prepayment would have resulted from a refinancing of the Loans, which refinancing shall not have been consummated or shall have otherwise been delayed. Partial prepayments of (i) the Term B Loans pursuant to this subsection shall be applied to the respective installments of principal thereof as directed by the Borrower in its prepayment notice, and (ii) the Revolving Credit Loans and the Reimbursement Obligations Unreimbursed Amounts pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Borrowing of Revolving Credit Loans then outstandingdesignated by the Borrower, third, to payment of any Reimbursement Obligations Unreimbursed Amounts then outstanding and, last, to cash collateralize Cash Collateralize any outstanding L/C C-BA Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(asubsection 4.2(a) shall be in multiples an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding in excess thereof. Notwithstanding the foregoing, any voluntary prepayment of the Term B Loans effected on or prior to the first anniversary of the Closing Date as a result of a Repricing Transaction shall be accompanied by a prepayment fee equal to 1.00% of the principal amount of the Term B Loans prepaid, unless such prepayment premium is waived by the applicable Term B Loan may be prepaid in its entiretyLender.
(b) On If on or after the Closing Date (i) the Borrower or any day of its Subsidiaries shall incur Indebtedness for borrowed money (other than during Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified in subsection 8.2) pursuant to a public offering or private placement or otherwise, (ii) the Borrower or any of its Subsidiaries shall make an Agent Advance PeriodAsset Sale pursuant to subsection 8.6(i), (iii) on which a Recovery Event occurs or (iv) the Aggregate Lender Exposure Borrower or the unpaid balance any of Extensions of Credit toits Subsidiaries shall enter into a Sale and Leaseback Transaction, or for the account ofthen, in each case, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timeBorrower shall prepay, in accordance with subsection 4.2(d), the Borrowers shall prepay on such day Term B Loans and, if so provided in the principal of applicable Incremental Facility Amendment, the Incremental Term Loans if any then outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to (x) in the prepayment of all outstanding Revolving Credit Loans, the aggregate amount case of the L/C Obligations exceeds incurrence of any such Indebtedness, 100% of the Borrowing Base at Net Cash Proceeds thereof minus any Permitted Acquisition Amount, (y) in the case of any such time (based Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts in accordance with the terms thereof as in effect on the Borrowing Base Certificate last deliveredClosing Date, and (z) in the case of any such Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds (except, in each case, as provided in subsection 4.2(g) and except that, in the case of clause (x), if any such Net Cash Proceeds are eligible to be used to pay the Borrowers cash consideration for an acquisition permitted by subsection 8.9(b) in accordance with the definition of the term “Permitted Acquisition Amount” in subsection 1.1 and the Borrower has not elected to so apply such proceeds, such prepayment to be made on the earlier of (1) the date occurring 90 days after the receipt of such Net Cash Proceeds and (2) the date on which the Borrower shall pay have determined not to acquire any business, assets or Capital Stock in an acquisition permitted by subsection 8.9(b) with all or any portion of such Net Cash Proceeds and except that, in the case of clauses (y) and (z), if any such Net Cash Proceeds are eligible to be reinvested in accordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Borrower has not elected to reinvest such proceeds, such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Borrower to such effect is delivered to the Administrative Agent on in accordance with such definition and (2) the last day an amount of cash and/or Cash Equivalents equal to the amount of period within which a certificate setting forth such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents election is required to be held as security for all obligations delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Borrowers to the Issuing Lenders Administrative Agent and the Revolving Credit Lenders hereunder set forth in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative AgentSection 9.
(c) The Borrowers If the Borrower or any of its Subsidiaries enters into any Permitted Receivables Transaction, on the next Business Day the Borrower shall prepay all Swingline prepay, in accordance with subsection 4.2(d), the Term B Loans and, if provided in the applicable Incremental Facility Amendment, Incremental Term Loans, if any then outstanding simultaneously with each borrowing by them outstanding, in an aggregate amount equal to the Permitted Receivables Transaction Prepayment Amount in respect of Revolving Credit Loanssuch Permitted Receivables Transaction.
(d) Prepayments pursuant to Subsection 4.4(bsubsections 4.2(b) and 4.2(c) shall be applied, first, applied to prepay Swingline Term B Loans then outstandingand, secondif so provided in the applicable Incremental Facility Amendment, to prepay Revolving Credit Loans then outstandingIncremental Term Loans, third, to pay if any Reimbursement Obligations then outstanding on a pro rata basis. Prepayments of Term B Loans, Incremental Term Loans, if any, pursuant to subsections 4.2(b) and 4.2(c) shall be applied pro rata to the respective installments of principal thereof, provided that, any such payment may, at the option of the Borrower, be first applied to the installments thereof due in the next twelve months and, lastthereafter, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agentremainder of such prepayment shall be allocated and applied pro rata as provided above.
(e) For avoidance Amounts prepaid on account of doubtTerm Loans pursuant to subsection 4.2(a), the Commitments shall 4.2(b) or 4.2(c) may not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b)reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection 4.4subsection 4.2, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(asubsection 4.2(b), 4.2(c) or 4.4(b4.2(g) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection 4.12 subsection 4.10 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), ) to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary hereinin subsection 4.2(b), this Subsection 4.4 may 4.2(c), 4.2(d) or 4.6, with respect to the amount of any optional prepayment or mandatory prepayment described in subsection 4.2 that is to be amended applied to Term Loans (such amount, the “Term Loan Prepayment Amount”), at any time when Term Loans remain outstanding and the Lenders hereby irrevocably authorize Term Loan Prepayment Amount is not sufficient to repay the principal amount of the Term Loans in full, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans, as provided in subsection 4.2(b), 4.2(c) or 4.2(d) above, on the date specified in this subsection 4.2 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) thereof and the Administrative Agent shall prepare and provide to enter into each Term Loan Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit I, and shall include an offer by the Borrower to prepay on the date (each a “Prepayment Date”) that is five Business Days after the date of the Prepayment Option Notice, the Term Loans of such Lender in an amount equal to such Lender’s Applicable Percentage of the Term Loan Prepayment Amount (the “Individual Term Loan Prepayment Amount”). In the event any such amendments) Lender desires to accept the Borrower’s offer in whole or in part, such Lender shall so advise the Administrative Agent by return notice no later than the close of business two Business Days after the date of such notice from the Administrative Agent, which return notice shall also include any amount of such Lender’s Individual Term Loan Prepayment Amount such Lender does not wish to receive. If any Lender does not respond to the extent Administrative Agent within the allotted time or indicate the amount of the Individual Term Loan Prepayment Amount it does not wish to receive, such Lender will be deemed to have accepted the Borrower’s offer in whole and shall receive 100% of its Individual Term Loan Prepayment Amount. On the Prepayment Date the Borrower shall prepay the Term Loan Prepayment Amount, and (i) the aggregate amount thereof necessary to reflect differing amounts payableprepay that portion of the outstanding relevant Term Loans in respect of which such Term Loan Lenders have accepted prepayment as described above shall be applied to the prepayment of the Term Loans, and priorities (ii) the aggregate amount (if any) equal to the portion of paymentsthe Term Loan Prepayment Amount not accepted by the relevant Term Loan Lenders shall be returned to the Borrower.
(h) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, then, within five Business Days after receipt of such notice, the Borrower shall prepay Loans in an aggregate amount sufficient to Lenders participating reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicableeffect.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty but including, for the avoidance of doubt, accrued interest, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans Loans) or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided thatfurther, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of Subject to Section 3.02, the Borrowers may Company may, at any time and or from time to time by irrevocable notice to the Agent, not later than 12:00 noon (New York City time) (i) one Business Day prior to a prepayment of any CD Loan, (ii) three Business Days prior to a prepayment of any Offshore Loan, or (iii) on the Business Day of a prepayment of any Base Loan, ratably prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium in minimum amounts of $5,000,000 or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date any multiple of prepayment ($1,000,000 in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency))excess thereof. Such notice of prepayment shall specifyspecify the date and amount of such prepayment, whether the Loans to be prepaid are Revolving Loans or Swingline Loans, the Type(s) of any Loans to be prepaid and the specific Borrowing or Borrowings pursuant to which such Loans were made. The Agent will promptly notify each Bank, in the case of any the prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each andSwingline Bank, in the case of any the prepayment of Reimbursement ObligationsSwingline Loans, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the its receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofnotice, and of such Bank's Commitment Percentage or Swingline Commitment Percentage of such prepayment, as applicable. If any such notice is givengiven by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at accrued interest to each such date on the end amount of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Offshore Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entiretyprepaid.
(b) On Immediately upon the occurrence of any day (other than during an Specified Transaction or at any time prior to the date that is 180 days after the date of consummation of such Specified Transaction, the Agent Advance Period) on which shall at the Aggregate Lender Exposure or request of, and may with the unpaid balance of Extensions of Credit to, or for the account consent of, the Borrowers exceeds the Borrowing Base Majority Banks, in their sole and absolute discretion, (based on the Borrowing Base Certificate last deliveredi) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect by notice to the prepayment Company pursuant to Section 10.02, declare the outstanding principal amount of all outstanding Revolving Credit Loans, together with accrued interest, amounts payable pursuant to Section 3.02 and all other amounts then outstanding hereunder, to be immediately due and payable, whereupon such amounts shall immediately be paid by the aggregate amount Company, and (ii) by notice to the Company pursuant to Section 10.02, declare the obligation of each Bank to make Loans, including the obligation of the L/C Obligations exceeds the Borrowing Base at Swingline Banks to make Swingline Loans, terminated, whereupon such time (based on the Borrowing Base Certificate last delivered), the Borrowers obligations shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agentterminated immediately.
(c) The Borrowers On the date of any increase in the total Commitments pursuant to Section 2.06, the Company shall prepay all Swingline Revolving Loans outstanding on such date, together with accrued interest thereon and amounts payable pursuant to Section 3.02; provided, however, that, notwithstanding the foregoing sentence, if after giving effect to such an increase in the total Commitments there are no new Banks hereunder and the Commitment Percentage of each Bank is unchanged from its Commitment Percentage immediately prior to such increase, then the Company shall not be required to prepay any Revolving Loans and related amounts outstanding simultaneously with each borrowing by them of Revolving Credit Loanson such date.
(d) Prepayments Immediately upon the occurrence of a Change in Control of the Company, (i) the outstanding principal amount of all Loans, together with accrued interest, amounts payable pursuant to Subsection 4.4(b) Section 3.02 and all other amounts then outstanding hereunder, shall be appliedimmediately due and payable, firstwhereupon such amounts shall immediately be paid by the Company, and (ii) the obligation of each Bank to prepay make Loans, including the obligation of the Swingline Loans then outstandingBanks to make Swingline Loans, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agentshall be immediately terminated.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made Any mandatory prepayment under Subsections 4.4(b).
subsection (f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaidb), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrowerc) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%d) of this Section shall be made by the amounts that otherwise would have been paid Company without presentment, demand, protest or other notice of any kind, except as provided in respect of such Eurodollar Loans or BA Equivalent Loans subsection (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (iib), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or all of which are expressly waived by the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaidCompany.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Compaq Computer Corp)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon irrevocable notice (in substantially the form attached hereto as Exhibit E) by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.1:00 P.M., New York City time time, at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyEurocurrency Loans), or prior to 11:00 A.M.1:00 P.M., New York City time time, at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)Dollars). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans, Incremental ABL Loans or Swingline Extended ABL Loans, or a combination thereof, and (ii) of Eurodollar Eurocurrency Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Parent Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. If any such notice is givengiven and is not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection this subsection 4.12, . Partial prepayments of the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection 4.4(a) shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, thirdsecond, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than with respect to Agent Advances during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered)) or the total Commitments at such time, the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans[Reserved].
(d) Prepayments pursuant to Subsection subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, thirdsecond, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans; provided that, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans (or other credit or letter of credit facility) added pursuant to Subsections 2.6, 2.7 subsections 2.6 and 2.8, as applicable.
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Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans Loans) or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided thatfurther, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
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Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty but including, for the avoidance of doubt, accrued interest, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar EurodollarDaily Simple SOFR Rate Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), Term SOFR Rate Loans) or prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar EurodollarDaily Simple SOFR Rate Loans, BA Equivalent Term SOFR Rate Loans or ABR Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section Subsection 4.4(a) and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided thatfurther, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon at least three Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyDollars), prior to 11:00 A.M., New York City time at least one Business Day prior Day's irrevocable notice by the Borrower to the date of prepayment Administrative Agent (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Swing Line Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencySwing Line Loans)). Such notice shall specify, specifying, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Term Loans, Revolving Credit Loans or Swingline Swing Line Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 4.12 and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this subsection shall be applied PRO RATA to the respective installments of principal thereof, PROVIDED that any such payment made within twelve months prior to the date on which an installment of principal thereof is scheduled to be made may, at the option of the Borrower, be applied first to such installment, and (ii) the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, firstFIRST, to payment of the Swingline Swing Line Loans then outstanding, secondSECOND, to payment of the Revolving Credit Loans then outstanding, thirdTHIRD, to payment of any Reimbursement Obligations then outstanding and, lastLAST, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entiretyexcess thereof.
(b) On If on or after the Closing Date (i) the Borrower or any day of its Subsidiaries shall incur Indebtedness for borrowed money (other than during Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified in subsection 8.2) pursuant to a public offering or private placement or otherwise or (ii) the Borrower or any of its Subsidiaries shall make an Agent Advance PeriodAsset Sale pursuant to subsection 8.6(i) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to(iii) a Recovery Event occurs, or for the account ofthen, in each case, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timeBorrower shall prepay, in accordance with subsection 4.4(e), the Borrowers shall prepay on such day Loans and cash collateralize the principal of outstanding Revolving Credit Loans L/C Obligations in an amount equal to such excess. If, after giving effect to (x) in the prepayment of all outstanding Revolving Credit Loans, the aggregate amount case of the L/C Obligations exceeds incurrence of any such Indebtedness, 100% of the Borrowing Base at Net Cash Proceeds thereof; and (y) in the case of any such time Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus (based 1) any Reinvested Amounts and (2) amounts, if any, required to be used to prepay Existing RIC Holding Indebtedness (and not permitted by the agreements governing the Existing RIC Holding Indebtedness to be used to prepay Indebtedness under this Agreement and the other Loan Documents) in accordance with the terms thereof as in effect on the Borrowing Base Certificate last deliveredClosing Date, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds (except that, in the case of clause (y), if any such Net Cash Proceeds are eligible to be reinvested in accordance with the Borrowers shall pay definition of the term "Reinvested Amount" in subsection 1.1 and the Borrower has not elected to reinvest such proceeds, such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Borrower to such effect is delivered to the Administrative Agent on in accordance with such definition and (2) the last day an amount of cash and/or Cash Equivalents equal to the amount of period within which a certificate setting forth such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents election is required to be held as security for all obligations delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Borrowers to the Issuing Lenders Administrative Agent and the Revolving Credit Lenders hereunder set forth in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative AgentSection 9.
(c) The Borrowers Borrower shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) If the Borrower or any of its Subsidiaries enters into any Permitted Receivables Transaction, on the next Business Day the Borrower shall prepay the Revolving Credit Loans and Swing Line Loans and cash collateralize the L/C Obligations in an aggregate amount equal to the Permitted Receivables Transaction Revolving Credit Prepayment Amount in respect of such Permitted Receivables Transaction; PROVIDED that if, on any date the amount by which the Base Amount is reduced by reference to such Permitted Receivables Transaction is in excess of the Permitted Receivables Transaction Revolving Credit Prepayment Amount (together with any prior prepayments pursuant to this proviso), on the next Business Day the Borrower shall make an additional prepayment of the Revolving Credit Loans and Swing Line Loans and cash collateralize the L/C Obligations in an aggregate amount equal to such excess.
(e) Prepayments pursuant to Subsection subsection 4.4(b) shall be applied, first, to prepay Swingline Term Loans then outstanding, second, to prepay Swing Line Loans then outstanding, third, to prepay Revolving Credit Loans then outstanding, thirdfourth, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding L/C Obligations on terms reasonably satisfactory to the Administrative Agent. Prepayments of Term Loans pursuant to subsection 4.4(b) shall be applied pro rata to the respective installments of principal thereof, PROVIDED, HOWEVER, that any such payment made within twelve months prior to the date on which an installment of the principal thereof is scheduled to be made may, at the option of the Borrower with respect to the Term Loans be applied to such installment.
(ef) For avoidance Amounts prepaid on account of doubt, the Term Loans pursuant to subsection 4.4(a) or 4.4(b) may not be reborrowed.
(g) The Revolving Credit Commitments shall not be correspondingly permanently reduced by the amount of any all prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections subsection 4.4(b) or subsection 4.4(d) (except that the amount of any reduction of the Revolving Credit Commitments then in effect resulting from any prepayment required by the proviso of subsection 4.4(d), (i) shall not be permanent and may be restored so long as after giving effect to any such restoration the aggregate net reduction of the Revolving Credit Commitments then in effect attributable to Permitted Receivables Transactions shall be at least equal to the then applicable reductions to the Base Amount attributable to Permitted Receivables Transactions and (ii) in any case, shall be disregarded for purposes of calculating Available Revolving Credit Commitments pursuant to subsection 4.5(a)).
(fh) Notwithstanding the foregoing provisions of this Subsection subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(asubsection 4.4(b) or 4.4(b4.4(d) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (ix) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), ) to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such the Borrower) or (iiy) make a prepayment of the Revolving Credit Loans in accordance with Subsection subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (ix) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided PROVIDED that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers Borrower may not request any Extension of Credit under the Revolving Credit Commitments that would reduce the aggregate amount of the Available Loan Revolving Credit Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided PROVIDED that, in the case of either clause (ix) or (iiy), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Company may at any time and from time to time prepay the Revolving Credit Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountand/or Term Loans, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon at least three Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of Eurodollar Loans) and at least one Business Day's irrevocable notice to the Administrative Agent (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of ABR Loans), the identity of the prepaying Borrower, specifying the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, Term Loans or a combination thereof, thereof and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligationseach. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end . Partial prepayments of the Interest Period applicable theretoLoans shall be in an aggregate principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Company or the Foreign Subsidiary Borrowers, as the case may be, may at any amounts time and from time to time prepay, without premium or penalty, the Multicurrency Loans, in whole or in part, upon at least three Business Days' irrevocable notice to the Administrative Agent specifying the date and amount of prepayment. Upon the receipt of any such notice, the Administrative Agent shall promptly notify each Revolving Credit Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable pursuant to Subsection 4.12on the date specified therein. Partial prepayments of Multicurrency Loans shall be in an aggregate principal amount of which the U.S. Dollar Equivalent is at least $1,000,000.
(c) If, at any time during the Revolving Credit Commitment Period, for any reason the Aggregate Revolving Credit Outstandings of all Revolving Credit Lenders exceed the Aggregate Revolving Credit Commitments then in effect, or the Aggregate Revolving Credit Outstandings of any Lender exceeds the Revolving Credit Commitment of such Revolving Credit Lender then in effect, (i) the Company shall, without notice or demand, immediately prepay the Revolving Credit Loans and and/or (ii) the Reimbursement Obligations Company or the Foreign Subsidiary Borrowers shall, without notice or demand, immediately prepay the Multicurrency Loans, in an aggregate principal amount at least sufficient to eliminate any such excess. Notwithstanding the foregoing, mandatory prepayments of Revolving Credit Loans or Multicurrency Loans that would otherwise be required pursuant to this Section subsection 6.4(c) solely as a result of currency fluctuations from time to time shall (unless the Parent Borrower otherwise directs) only be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made subsection 6.4 on a the last Business Day of each month on the basis of the U.S. Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay effect on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit LoansBusiness Day.
(d) Prepayments pursuant If, subsequent to Subsection 4.4(b) the Closing Date, the Company shall issue and sell any Capital Stock, 75% of the Net Proceeds thereof shall be appliedpromptly applied toward the prepayment of the Loans and reduction of the Revolving Credit Commitments as set forth in subsection 6.4(h); PROVIDED, first, that (i) net proceeds of any equity received by the Company and used to fund acquisitions within 180 days after receipt of such net proceeds shall not be required to be applied toward prepayment of the Loans and (ii) net proceeds of any Capital Stock or other equity received by the Company and used to prepay Swingline Loans then outstanding, second, New Subordinated Debt or Existing Subordinated Debt within 90 days after receipt of such net proceeds shall not be required to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to be applied toward prepayment of the Administrative AgentLoans.
(e) For avoidance of doubtIf, subsequent to the Closing Date, the Commitments Company or any of its Subsidiaries shall not receive Net Proceeds from any Asset Sale, 100% of such Net Proceeds shall be correspondingly reduced by promptly applied toward the amount prepayment of any prepayments the Loans and reduction of the Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, Commitments as set forth in each case, made under Subsections 4.4(bsubsection 6.4(h).
(f) Notwithstanding If for any fiscal year, commencing with the foregoing provisions fiscal year in which the Closing Date occurs, there shall be Consolidated Excess Cash Flow for such fiscal year, 25% of this Subsection 4.4such Consolidated Excess Cash Flow (in the case of Consolidated Excess Cash Flow for the fiscal year ending September 30, if at 1997) and 50% of such Consolidated Excess Cash Flow (in the case of any time any subsequent fiscal year) shall be applied toward prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to and reduction of the procedures Revolving Credit Commitments as set forth in subsection 6.4(h). Each such prepayment shall be made on or before the date on which the financial statements referred to in subsection 9.1(a) in respect of such fiscal year are delivered, but in no event later than the date by which such statements are required to be delivered pursuant to such subsection.
(g) Each prepayment of Loans pursuant to this Agreementsubsection 6.4 shall be accompanied by accrued and unpaid interest on the amount prepaid to the date of prepayment and any amounts payable under subsection 6.11 in connection with such prepayment.
(h) All prepayments pursuant to subsections 6.4(d), (e) and (f) shall be applied, FIRST, to the prepayment of the Term Loans and, SECOND, to the permanent reduction of the Revolving Credit Facility. Each such prepayment of the Term Loans shall be applied FIRST, to the next installment due and, SECOND, to the remaining installments thereof ratably in accordance with the then outstanding amounts thereof; PROVIDED, that prepayments of the Term Loans with the proceeds of the sale of the Company's magnetics business will be applied first toward prepayment of the next four installments due under the Term Loans and thereafter to remaining installments under the Term Loans ratably in accordance with the then outstanding amounts thereof. Notwithstanding the foregoing, each holder of Term Loans shall have the right to refuse all or any portion of such prepayment allocable to its Term Loans.
(i) All such prepayments within each Class of Loans shall be applied first to reduce outstanding ABR Loans and any amounts remaining after such application shall, at the option of the Company, be applied to prepay Eurodollar Loans immediately or shall be deposited in the Prepayment Account (as defined below). The Administrative Agent will apply any cash deposited in the Prepayment Account (i) allocable to Term Loans to prepay Eurodollar Term Loans and (ii) allocable to Revolving Credit Loans to prepay Eurodollar Revolving Credit Loans, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than each case on the last day of an their respective Interest Period with respect theretoPeriods (or, then, at the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) direction of the amounts that otherwise would have been paid in respect of such Eurodollar Company, on any earlier date) until all outstanding Term Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have been prepaid or until all the allocable cash held in the Prepayment Account with respect to such Loans has been prepaid.
exhausted. The term "PREPAYMENT ACCOUNT" shall mean an account established by the Company with the Administrative Agent and over which the Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal for application in accordance with this paragraph (gi). The Administrative Agent will, at the written or telephonic request (which shall promptly be confirmed in writing) Notwithstanding anything of the Company, use its reasonable efforts to invest amounts on deposit in the contrary hereinPrepayment Account in the Cash Equivalents specified in such request; PROVIDED, this Subsection 4.4 may HOWEVER, that (i) the Administrative Agent shall not be amended (and the Lenders hereby irrevocably authorize required to make any investment that, in its sole judgment, would require or cause the Administrative Agent to enter into be in, or would result in any, violation of any law, statute, rule or regulation, (ii) the Administrative Agent shall have no obligation to invest amounts on deposit in the Prepayment Account if an Event of Default shall have occurred and be continuing and (iii) no such amendments) investments shall mature after the last day of the applicable Interest Periods of the Eurodollar Term Loans or Eurodollar Revolving Credit Loans to be prepaid, as the case may be. The Company shall indemnify the Administrative Agent for any losses relating to the extent necessary investments so that the amount available to reflect differing amounts payableprepay Eurodollar Loans on the last day of the applicable Interest Periods is not less than the amount that would have been available had no investments been made pursuant thereto. Until no Term Loans or Revolving Credit Loans, as the case may be, are outstanding, interest or profits, if any, on such investments shall be deposited in the Prepayment Account and priorities reinvested as specified above. Upon prepayment or payment in full of paymentsall Term Loans or Revolving Credit Loans, as the case may be, any amount remaining on deposit in the Prepayment Account with respect to Lenders participating in any new classes or tranches such Loans shall be paid to the Company. If the maturity of loans added the Loans has been accelerated pursuant to Subsections 2.6Section 12, 2.7 the Administrative Agent may, in its sole discretion, apply all amounts on deposit in the Prepayment Account to satisfy any of the Obligations. The Company hereby grants to the Administrative Agent, for its benefit and 2.8the benefit of the Issuing Bank and the Lenders, as applicablea security interest in the Prepayment Account.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Senior Interim Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountit, in whole or in part, subject to Subsection 4.12subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of Eurocurrency Loans), and at least one Business Day’s irrevocable notice by the Borrower to the Administrative Agent (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)the case of ABR Loans). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, specify (i) the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereofprepayment, and (ii) whether the prepayment is of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligationseach. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 3.12 and accrued interest to such date on the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basisamount prepaid. Partial prepayments pursuant to this Subsection 4.4(asubsection 3.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, 1.0 million; provided that, notwithstanding the foregoing, any Loan the Senior Interim Loans may be prepaid in its their entirety.
(b1) On If on or after the Closing Date (i) the Borrower or any day Restricted Subsidiary shall incur Indebtedness for borrowed money (other than during Indebtedness permitted pursuant to subsection 7.1(b)) or (ii) the Borrower consummates (x) an Agent Advance Periodunderwritten public offering of Capital Stock of the Borrower (excluding Preferred Stock); or (y) on which the Aggregate Lender Exposure any underwritten public offering or the unpaid balance private placement of Extensions of Credit toPreferred Stock, or for any public offering or private placement of bonds, debentures, notes or other similar debt securities, of the account ofBorrower (excluding Preferred Stock, bonds, debentures, notes or other similar debt securities issued in a private placement to any Permitted Holder or any designee of any Sponsor and any Excluded Indebtedness), then, in each case, the Borrowers exceeds Borrower shall, to the Borrowing Base (based on extent permitted by the Borrowing Base Certificate last delivered) or the total Commitments at such timeSenior Secured Credit Facilities, prepay, in accordance with subsection 3.4(c), the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Senior Interim Loans in an amount equal to (i) 100% of the Net Cash Proceeds thereof minus (ii) the portion of such excess. IfNet Cash Proceeds applied to prepay, after giving effect repay or purchase (to the prepayment of all outstanding Revolving Credit extent the Borrower or any Restricted Subsidiary is required by the terms thereof) other Senior Indebtedness on a pro rata basis with the Senior Interim Loans, with such prepayment to be made on or before the aggregate amount Business Day following the date of receipt of any such Net Cash Proceeds. Nothing in this subsection 3.4(b) shall limit the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to rights of the Administrative Agent on such day an amount and the Lenders set forth in Section 8, except that in the case of cash and/or Cash Equivalents equal a transaction resulting in a prepayment pursuant to the amount this subsection 3.4(b) of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders Senior Interim Loans and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control oftermination of all Senior Interim Loan Commitments hereunder, the Administrative AgentAgent and the Lenders agree that the incurrence of such Indebtedness will not constitute a Default or Event of Default. For the avoidance of doubt, the provisions of this paragraph shall not apply to an offering of Capital Stock of the Borrower to Management Investors.
(2) The Borrower shall, in accordance with subsection 3.4(c), prepay the Senior Interim Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
(c) The Borrowers Borrower shall prepay give notice to the Administrative Agent of any mandatory prepayment of the Senior Interim Loans, promptly (and, to the extent practicable, within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make such mandatory prepayment on or before the date specified in subsection 3.4(b) (any such date of prepayment, a “Prepayment Date”). Once given, such notice shall be irrevocable and all Swingline Loans then outstanding simultaneously amounts subject to such notice shall be due and payable on the relevant Prepayment Date as required by subsection 3.4 (except as otherwise provided in the last sentence of this subsection 3.4(c)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the relevant Prepayment Date. In the case of any prepayment pursuant to subsection 3.4(b), each Lender may (in its sole discretion) elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 a.m., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be retained by the Borrower and its Subsidiaries or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with each borrowing by them of Revolving Credit Loansthis Agreement.
(d) Prepayments pursuant to Subsection 4.4(b) shall Amounts prepaid on account of Senior Interim Loans may not be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agentreborrowed.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4subsection 3.4, if at any time any prepayment of the Senior Interim Loans pursuant to Subsection 4.4(asubsection 3.4(a) or 4.4(b(b) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection 4.12 subsection 3.12 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, then the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection 4.1 subsection 3.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Eurocurrency Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: Senior Interim Loan Credit Agreement (Servicemaster Co)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Parent Borrower may at any time and from time to time prepay the Loans made to it and and, in accordance with Section 3.5, the Reimbursement Obligations Amounts in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection Section 4.12, without premium or penalty, upon irrevocable at least three Business Days’ notice by the Parent Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Eurocurrency Loans outstanding and (y) Reimbursement Amounts outstanding in the Designated Foreign Currency), or at least one Business Day’s notice by the Parent Borrower to the Administrative Agent (in the case of (x) ABR Loans and (y) Reimbursement Obligations Amounts outstanding in Dollars or a Designated Foreign Currency)Dollars). Such notice shall specify, in the case of any prepayment of Loans, the identity of Tranche being prepaid, and if a combination thereof, the prepaying Borrowerprincipal amount allocable to each, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement ObligationsAmounts, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement ObligationsAmounts. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Parent Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and is not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, Section 4.12 and accrued interest to such date on the Revolving Credit amount prepaid. Partial prepayments of (1) the Tranche B Term Loans and the Reimbursement Obligations pursuant to this Section 4.4(a) shall (unless be applied pro rata to the respective installments of principal thereof or as otherwise directed by the Parent Borrower otherwise directsand (2) the Reimbursement Amounts pursuant to this Section 4.4(a) shall be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, applied to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection Section 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, 1,000,000; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(bi) On The Parent Borrower shall, in accordance with Section 4.4(d), prepay the Tranche B Term Loans and cash collateralize the L/C Obligations to the extent required by Section 8.4(b) (subject to Section 8.4(c)) and (ii) if on or after the Closing Date the Parent Borrower or any day of its Subsidiaries shall incur Indebtedness for borrowed money (other than during an Agent Advance PeriodIndebtedness permitted pursuant to Section 8.1) on which pursuant to a public offering or private placement or otherwise, then, if and to the Aggregate Lender Exposure extent the applicable Net Proceeds are not required to be applied to the payment of obligations of the Parent Borrower or the unpaid balance of Extensions of Credit to, or for other borrowers under the account ofSenior ABL Facility as in effect on the date hereof, the Borrowers exceeds Parent Borrower shall, in accordance with Section 4.4(d), prepay the Borrowing Base (based on Loans and cash collateralize the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans L/C Obligations in an amount equal to 100% of the Net Proceeds thereof minus the portion of such excess. If, after giving effect Net Proceeds applied (to the prepayment extent Parent or any of all outstanding Revolving Credit its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Indebtedness that is pari passu with the Obligations on a pro rata basis with the Loans, in each case with such prepayment to be made on or before the aggregate amount third Business Day following the date of receipt of any such Net Proceeds. Nothing in this paragraph (b) shall limit the rights of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders Agents and the Revolving Credit Lenders hereunder set forth in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative AgentSection 9.
(c) The Borrowers Parent Borrower shall give notice to the Administrative Agent of any mandatory prepayment of the Loans pursuant to Section 4.4(b) (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Parent Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Section 4.4(b)(i), on or before the date specified in Section 8.4(b) and (ii) in the case of mandatory prepayments pursuant to Section 4.4(b)(ii), on or before the date specified in Section 4.4(b)(ii) (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Section 4.4(c)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Parent Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Parent Borrower of such election. Any amount so declined by any Lender may, at the option of the Parent Borrower, be applied to pay or prepay all Swingline Loans then outstanding simultaneously Indebtedness, including any Senior Notes, or otherwise be retained by the Parent Borrower and its Subsidiaries or applied by the Parent Borrower or any of its Subsidiaries in any manner not inconsistent with each borrowing by them of Revolving Credit Loansthis Agreement.
(d) Prepayments pursuant to Subsection Section 4.4(b) shall be applied, first, to prepay Swingline Term Loans then outstanding, outstanding and second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding L/C Obligations in an amount equal to 100% of such outstanding L/C Obligations on terms reasonably satisfactory to the Administrative Agent. Prepayments of Tranche B Term Loans pursuant to Section 4.4(b) shall be applied pro rata to the respective installments of principal thereof, provided that notwithstanding the foregoing, any such partial prepayment may, at the option of the Parent Borrower, be first allocated to the Term Loans pro rata based upon the aggregate amount of the installments thereof due in the next twelve months and then the remainder of such partial prepayment shall be allocated and applied as set forth above.
(e) For avoidance Amounts prepaid on account of doubt, the Commitments shall Term Loans pursuant to Section 4.4(a) or 4.4(b) may not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b)reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection Section 4.4, if at any time any prepayment of the Loans pursuant to Subsection Section 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any the Parent Borrower incurring breakage costs under Subsection Section 4.12 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Parent Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Parent Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Parent Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection Section 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Eurocurrency Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything Upon at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent (which notice the Administrative Agent shall promptly transmit to enter into each of the Lenders), the Parent Borrower shall have the right, without premium or penalty, on any day, permanently to reduce the Letter of Credit Commitments and/or the L/C Participations, in whole or in part, provided that (A) any partial reduction pursuant to this Section 4.4(g) shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount and (B) after giving effect to a reduction of the L/C Participations and to any cancellation or cash collateralization of Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Letter of Credit Exposures shall not exceed the Total Credit Linked Deposit, and provided further that unless the Total Credit Linked Deposits (after giving effect to such amendmentsreduction under this Section 4.4(g)) equal or exceed the excess of the L/C Obligations over any drawings under Letters of Credit to which Credit Linked Deposits have been applied in accordance with Section 3.2(c), the Parent Borrower shall not have the right to cash collateralize Letters of Credit in connection with such reduction without the consent of each Issuing Lender (such consent not to be unreasonably withheld or delayed). Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Parent Borrower (by written notice to the extent necessary Administrative Agent on or prior to reflect differing amounts payablethe specified effective date) if such condition is not satisfied. In the event the L/C Participations shall be reduced as provided in the second preceding sentence, the Administrative Agent shall reduce the Total Credit Linked Deposits in a corresponding amount, and priorities return all amounts in the Credit Linked Deposit Account in excess of paymentsthe reduced Total Credit Linked Deposit to the L/C Participants ratably in accordance with their Letter of Credit Percentage of the Total Credit Linked Deposit (as determined immediately prior to such reduction).
(h) On the Springing Maturity Date, if the sum of the aggregate principal amount of the Senior Dollar 2014 Notes then outstanding and the Dollar Equivalent of the aggregate principal amount of Senior Euro 2014 Notes then outstanding exceeds $500,000,000, then on such date the Parent Borrower shall make payment in full of the Loans and any other amounts then due and owing to Lenders participating in any new classes Lender or tranches of loans added pursuant any Agent hereunder and cash collateralize the L/C Obligations on terms reasonably satisfactory to Subsections 2.6, 2.7 and 2.8, as applicablethe Administrative Agent.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of Subject to Section 3.02, the Borrowers may Company may, at any time and or from time to time by irrevocable notice to the Agent, not later than 12:00 noon (New York City time)
(i) one Business Day prior to a prepayment of any CD Loan, (ii) three Business Days prior to a prepayment of any Offshore Loan, or (iii) on the Business Day of a prepayment of any Base Loan, ratably prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium in minimum amounts of $5,000,000 or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date any multiple of prepayment ($1,000,000 in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency))excess thereof. Such notice of prepayment shall specifyspecify the date and amount of such prepayment, whether the Loans to be prepaid are Revolving Loans or Swingline Loans, the Type(s) of any Loans to be prepaid and the specific Borrowing or Borrowings pursuant to which such Loans were made. The Agent will promptly notify each Bank, in the case of any the prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each andSwingline Bank, in the case of any the prepayment of Reimbursement ObligationsSwingline Loans, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the its receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofnotice, and of such Bank's Commitment Percentage or Swingline Commitment Percentage of such prepayment, as applicable. If any such notice is givengiven by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at accrued interest to each such date on the end amount of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Offshore Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entiretyprepaid.
(b) On Immediately upon the occurrence of any day (other than during an Specified Transaction or at any time prior to the date that is 180 days after the date of consummation of such Specified Transaction, the Agent Advance Period) on which shall at the Aggregate Lender Exposure or request of, and may with the unpaid balance of Extensions of Credit to, or for the account consent of, the Borrowers exceeds the Borrowing Base Majority Banks, in their sole and absolute discretion, (based on the Borrowing Base Certificate last deliveredi) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect by notice to the prepayment Company pursuant to Section 10.02, declare the outstanding principal amount of all outstanding Revolving Credit Loans, together with accrued interest, amounts payable pursuant to Section 3.02 and all other amounts outstanding hereunder, to be immediately due and payable, whereupon such amounts shall immediately be paid by the aggregate amount Company, and (ii) by notice to the Company pursuant to Section 10.02, declare the obligation of each Bank to make Loans, including the obligation of the L/C Obligations exceeds the Borrowing Base at Swingline Banks to make Swingline Loans, terminated, whereupon such time (based on the Borrowing Base Certificate last delivered), the Borrowers obligations shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agentterminated immediately.
(c) The Borrowers On the date of any increase in the total Commitments pursuant to Section 2.06, the Company shall prepay all Swingline Revolving Loans outstanding on such date, together with accrued interest thereon and amounts payable pursuant to Section 3.02; PROVIDED, HOWEVER, that, notwithstanding the foregoing sentence, if after giving effect to such an increase in the total Commitments there are no new Banks hereunder and the Commitment Percentage of each Bank is unchanged from its Commitment Percentage immediately prior to such increase, then the Company shall not be required to prepay any Revolving Loans and related amounts outstanding simultaneously with each borrowing by them of Revolving Credit Loanson such date.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
Any mandatory prepayment under subsection (e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrowerb) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%c) of this Section shall be made by the amounts that otherwise would have been paid Company without presentment, demand, protest or other notice of any kind, except as provided in respect of such Eurodollar Loans or BA Equivalent Loans subsection (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (iib), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or all of which are expressly waived by the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaidCompany.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, part without premium or penaltypenalty but including, for the avoidance of doubt, accrued interest, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Daily Simple SOFR Rate Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), Term SOFR Rate Loans) or prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Daily Simple SOFR Rate Loans, BA Equivalent Term SOFR Rate Loans or ABR Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section Subsection 4.4(a) and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions [Reserved].
(g) If a notice of this prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 4.42.3, then such notice of prepayment may be revoked if at any time any prepayment such notice of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans termination is revoked in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid2.3.
(gh) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the U.S. Borrower Representative or the Canadian Borrower Representative, as the case may be, to the Administrative Agent prior to 11:00 A.M.or the Canadian Agent, New York City time three Business Days prior to the date of prepayment as applicable (in the case of Eurodollar Eurocurrency Loans outstanding in Dollars or any Designated Foreign Currency, Bankers’ Acceptances or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day Day’s irrevocable notice by the U.S. Borrower Representative or the Canadian Borrower Representative, as the case may be, to the Administrative Agent or the Canadian Agent, as applicable (in the case of (x) ABR Loans other than Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)Canadian Dollars) or same-day irrevocable notice by the U.S. Borrower Representative or the Canadian Borrower Representative, as the case may be, to the Administrative Agent or the Canadian Agent, as applicable (in the case of Swingline Loans). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Eurocurrency Loans, Bankers’ Acceptances, BA Equivalent Loans, ABR Loans or Canadian Prime Rate ABR Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan Eurocurrency Loan, Bankers’ Acceptances or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 4.12 the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding Bankers’ Acceptances, BA Equivalent Loan or L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection subsection 4.4(a) in respect to any Loan denominated in Canadian Dollars or a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000(or, as applicablein the case of (a) partial prepayments made by the Canadian Borrowers, Cdn$1,000,000 and (b) Eurocurrency Loans outstanding in any Designated Foreign Currency, the Dollar Equivalent of an aggregate principal amount of at least approximately $1,000,000), provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) If, on or after the Closing Date (i) the Parent Borrower or any of its Subsidiaries shall incur Indebtedness for borrowed money consisting of Specified Debt pursuant to a public offering, private placement or otherwise, (ii) the Parent Borrower or any of its Subsidiaries shall make an Asset Sale (including a Sale and Leaseback Transaction) or (iii) a Recovery Event occurs, then, in each case, to the extent that and for so long as Available Loan Commitments are less than $55,000,000 immediately after giving effect to such incurrence of Indebtedness, Asset Sale or Recovery Event, the Borrowers shall prepay, in accordance with subsection 4.4(e), the Loans and cash collateralize the Bankers’ Acceptances, BA Equivalent Loans and the L/C Obligations in an amount equal to the lesser of: (A) (x) in the case of the incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof and (y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus (1) any Reinvested Amounts and (2) any amount applied to prepay Loans in accordance with subsection 4.4(a) as contemplated by clause (a) of the first proviso of the definition of “Reinvested Amount” and (B) the amount of such prepayments required in order for Available Loan Commitments to be $55,000,000 or more, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds except that, in the case of clause (y), if any such Net Cash Proceeds are eligible to be reinvested in accordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Parent Borrower has not elected to reinvest such proceeds (or portion thereof, as the case may be), such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Parent Borrower to such effect is delivered to the Administrative Agent in accordance with such definition and (2) the last day of the period within which a certificate setting forth such election is required to be delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Agents and the Lenders set forth in Section 9.
(c) (i) On any day (other than during an Agent Advance Period) on which the Aggregate U.S. Facility Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) or minus (B) the total Commitments excess of (1) the Aggregate Canadian Facility Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such timetime (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall prepay on such day the principal of outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers and, if required, U.S. Facility Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers and U.S. Facility Revolving Credit Loans, the aggregate amount of the U.S. Facility L/C Obligations exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) minus (B) the excess of (1) the Aggregate Canadian Facility Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyEurocurrency Loans), prior to 11:00 A.M., New York City time and at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day Day’s irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline ABR Loans other than Swing Line Loans and (y) Reimbursement Obligations outstanding Obligations) or same day irrevocable notice by the Borrower to the Administrative Agent (in Dollars or a Designated Foreign Currency)the case of Swing Line Loans). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, specify the date and amount of prepayment and whether the prepayment is (i) of Term Loans, Revolving Credit Loans or Swingline Swing Line Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 3.12 and accrued interest to such date on the Revolving Credit amount prepaid. Partial prepayments of Loans and the Reimbursement Obligations pursuant to this Section subsection 3.4(a) shall be applied (unless A) in the Parent case of partial prepayments of Term Loans, to the respective installments of principal of such Term Loans in such order as the Borrower otherwise directsmay direct and (B) be appliedin the case of partial prepayments of other Loans and Reimbursement Obligations, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(asubsection 3.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, 1.0 million; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers Borrower shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(b) On or before the date that is fifteen Business Days following the 90th day after the end of each fiscal year of the Borrower ending on or after February 2, 2009 (each, an “ECF Payment Date”), the Borrower shall, in accordance with subsections 3.4(d) and (e), prepay the Term Loans in an amount equal to (A) (x) the ECF Percentage of (i) the Borrower’s Excess Cash Flow for the immediately preceding fiscal year minus (ii) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any loans under the Revolving Facility and the ABL Facility prepaid to the extent accompanied by a corresponding permanent commitment reduction under such facility, in each case during such fiscal year excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness, minus (y) the aggregate principal amount of Term Loans prepaid pursuant to subsection 3.4(a), and any loans under the Revolving Facility and the ABL Facility prepaid to the extent accompanied by a corresponding permanent commitment reduction under such facility, in each case since the end of such fiscal year and on or prior to such ECF Payment Date, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (in the case of this clause (y), without duplication of any amount thereof previously deducted in any calculation pursuant to this subsection 3.4(b) for any prior ECF Payment Date) (the amount described in this clause (A), the “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the extent the Borrower or any Restricted Subsidiary is required by the terms thereof) to prepay, repay or purchase other Permitted Additional Indebtedness on a pro rata basis with the Term Loans. For the avoidance of doubt, for purposes of this subsection 3.4(b), proceeds from the Incurrence of long-term Indebtedness shall not be deemed to include proceeds from the Incurrence of Indebtedness under the Revolving Facility, the ABL Facility, any Special Purpose Financing or any other revolving credit or working capital financing permitted to be incurred pursuant to the terms of this Agreement.
(c) The Borrower shall, in accordance with subsections 3.4(d) and (e), prepay the Term Loans to the extent required by subsection 7.4(b)(ii) (subject to subsection 7.4(c)).
(d) Prepayments of Term Loans pursuant to Subsection 4.4(bsubsections 3.4(b) and (c) shall be applied, first, applied to prepay Swingline Loans then outstanding, second, installments of principal thereof pursuant to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory subsection 2.6(b) in forward order of maturity.
(i) The Borrower shall give notice to the Administrative Agent.
Agent of any mandatory prepayment of the Term Loans (ex) For avoidance pursuant to subsection 3.4(b), ten Business Days prior to the date on which such payment is due and (y) pursuant to subsection 3.4(c), within five Business Days upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make such mandatory prepayment (x) on a date that is ten Business Days after the date of doubtsuch notice in the case of any prepayment pursuant to subsection 3.4(b), or (y) on or before the date specified in subsection 3.4(c), in the case of a prepayment pursuant to subsection 3.4(c) (any such date of prepayment, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the relevant Prepayment Date as required by subsection 3.4 (except as otherwise provided in the last sentence of this subsection 3.4(e)). Upon receipt by the Administrative Agent of such notice, the Commitments Administrative Agent shall not be correspondingly reduced immediately give notice to each Lender of the prepayment and the relevant Prepayment Date. In the case of any prepayment pursuant to subsection 3.4(b) or (c), each Lender may (in its sole discretion) elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 a.m., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of any prepayments the Borrower, be applied to pay or prepay the Term Loans of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C ObligationsLenders not declining such prepayment, in each casethe manner described in subsection 3.4(d), made or other obligations under Subsections 4.4(bthe other Senior Credit Facilities, or otherwise be retained by the Borrower and its Restricted Subsidiaries or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement, including subsection 7.4(b).
(ii) Notwithstanding anything to the contrary in subsection 3.4(e)(i), until the THD Guarantee Release Date, the Lenders shall not have the right to decline any prepayment of the Term Loans required pursuant to subsections 3.4(b) or 3.4(c), and the Borrower’s notice under subsection 3.4(e)(i) shall, instead of making an offer to make a prepayment, state the date that the applicable prepayment shall be made (which shall be the same date such prepayment would otherwise be required to be made pursuant to subsection 3.4(e)(i)), unless, with respect to any such prepayment, THD consents to providing the Lenders the right to decline such prepayment.
(f) Amounts prepaid on account of Term Loans pursuant to subsection 3.4(a), (b) or (c) may not be reborrowed.
(g) Notwithstanding the foregoing provisions of this Subsection 4.4subsection 3.4, if at any time any prepayment of the any Eurocurrency Loans pursuant to Subsection 4.4(asubsection 3.4(a), (b) or 4.4(b(c) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection 4.12 subsection 3.12 as a result of Eurodollar Loans or BA Equivalent such Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, then the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(asubsection 3.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers Borrower may request any Extension of Credit under the Revolving Commitments that would reduce the aggregate amount of the Available Loan Revolving Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection 4.1 subsection 3.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Eurocurrency Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: Credit Agreement (HSI IP, Inc.)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans Term SOFR Rate Loans) or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Term SOFR Rate Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, with respect to the applicable Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Swingline Loans and Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Swingline Loans and Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent[Reserved].
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Term SOFR Rate Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans; provided thatfurther, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Term SOFR Rate Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Term SOFR Rate Loans or the related portion of such Eurodollar Loans or BA Equivalent Term SOFR Rate Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each If the Borrower or any of its Subsidiaries consummates any Capital Markets Transaction subsequent to the Borrowers Closing Date which results in the receipt by the Borrower or any of its Subsidiaries of Net Cash Proceeds with respect thereto, the Borrower shall prepay, on the Business Day next succeeding the day on which such Net Cash Proceeds are received, any outstanding Loans, with the amount of such prepayment being equal to the amount of such Net Cash Proceeds.
(b) If the Borrower or any of its Subsidiaries consummates any any Disposition permitted by subsection 7.4(f) subsequent to the Closing Date which requires that the Loans be prepaid pursuant to such subsection, the Borrower shall prepay, on the Business Day next succeeding the day on which the relevant Net Cash Proceeds are received, any outstanding Loans, with the amount of such prepayment being equal to the amount of such Net Cash Proceeds.
(c) The Borrower may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountoutstanding Loans, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty (other than any amounts payable pursuant to subsection 3.11 if such prepayment is of LIBOR Loans and is made on a day other than the last day of the Interest Period with respect thereto), upon at least four Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, specifying the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline LIBOR Loans, or ABR Loans, a combination thereof, and (ii) if of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligationseach. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable by the Borrower on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) of Loans shall be in multiples an aggregate principal amount of at least $5,000,000 or an integral multiple of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loansthereof.
(d) Prepayments Amounts to be applied to prepayments of Loans pursuant to Subsection 4.4(bsubsections 3.1(a) and (b) shall be applied, without duplication, first, to prepay Swingline Loans then outstandingABR Loans, if applicable, and, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit LIBOR Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any . Each prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect under this subsection 3.1 shall be accompanied by payment of accrued interest to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until on the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been amount prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Schein Henry Inc)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection Section 4.12, without premium or penalty, upon irrevocable at least three Business Days’ (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) notice by the applicable Borrower Representative to the Administrative Agent prior to 11:00 A.M.or the Canadian Agent, New York City time three Business Days prior to the date of prepayment as applicable (in the case of Eurodollar Eurocurrency Loans outstanding in Dollars or any Designated Foreign Currency, Bankers’ Acceptances or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to Day’s (or such shorter period as may be agreed by the date of prepayment (Administrative Agent in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loansits reasonable discretion) or same-day irrevocable notice by the applicable Borrower Representative to the Administrative Agent or the Canadian Agent, as applicable (in the case of (x) Swingline ABR Loans other than Swing Line Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyCanadian Dollars) or same-day notice by the applicable Borrower to the Administrative Agent or the Canadian Agent, as applicable (in the case of Swing Line Loans). Such notice shall be irrevocable except as provided in Section 4.4(f). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and the Tranches being prepaid and if a combination thereof the principal amount allocable to each, and whether the prepayment is (i) of Revolving Credit Loans or Swingline Eurocurrency Loans, or a combination thereof, and (ii) of Eurodollar LoansBankers’ Acceptances, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Section 4.4(f)) be due and payable on the date specified therein, together with (if a Eurodollar Loan Eurocurrency Loan, Bankers’ Acceptances or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection Section 4.12, . Partial prepayments of the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section 4.4(a) shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding Bankers’ Acceptances or L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection Section 4.4(a) in respect to any Loan denominated in Canadian Dollars or a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection Section 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000(or, as applicablein the case of (i) partial prepayments made by the Canadian Borrowers, Cdn$1,000,000 and (ii) Eurocurrency Loans outstanding in any Designated Foreign Currency, the Dollar Equivalent of an aggregate principal amount of at least approximately $1,000,000), provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) The Borrowers shall, in accordance with Section 4.4(e), prepay the Loans and cash collateralize the Bankers’ Acceptances and the L/C Obligations to the extent required by Section 8.6(b) (subject to Section 8.6(c)).
(i) On any day (other than during an Agent Advance Period) on which the Aggregate U.S. Facility Lender Exposure or the Dollar Equivalent of the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) or minus (B) the total Commitments excess of (1) the Aggregate Canadian Facility Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such timetime (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall prepay on such day the principal of outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers and, if required, U.S. Facility Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers and U.S. Facility Revolving Credit Loans, the aggregate amount of the U.S. Facility L/C Obligations and the Canadian Facility L/C Obligations with respect to the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) minus (B) the excess of (1) the Aggregate Canadian Facility Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall pay to the Administrative Agent or the Canadian Agent, as applicable, at the office designated for payment on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(cii) Without duplication of any mandatory prepayment required under Section 4.4(c) above, on any day (other than during an Agent Advance Period) on which the Aggregate Canadian Facility Lender Exposure with respect to the Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate last delivered) over (2) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers, the Canadian Borrowers shall prepay on such day the principal of Canadian Facility Revolving Credit Loans made to them in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans, the aggregate amount of the Canadian Facility L/C Obligations with respect to the Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate last delivered) over (2) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers, the Canadian Borrowers shall pay to the Canadian Agent at the office designated for payment on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Canadian Facility L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Canadian Borrowers to the applicable Issuing Lenders and the Canadian Facility Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Canadian Agent.
(iii) On any day on which the Dollar Equivalent of the Aggregate U.S. Facility Lender Exposure exceeds the Total U.S. Facility Commitment at such time, the U.S. Borrowers shall prepay on such day the principal of U.S. Facility Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding U.S. Facility Revolving Credit Loans, the aggregate amount of the U.S. Facility L/C Obligations exceeds the U.S. Facility L/C Sublimit at such time, the U.S. Borrowers shall pay to the Administrative Agent at the office designated for payment on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the U.S. Facility L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the applicable Issuing Lenders and the U.S. Facility Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(iv) On any day on which the Dollar Equivalent of the Aggregate Canadian Facility Revolving Credit Exposure exceeds the Total Canadian Facility Commitment at such time, the Canadian Borrowers and, if applicable, the U.S. Borrowers shall prepay on such day the principal of Canadian Facility Revolving Credit Loans, in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans, the Dollar Equivalent of the aggregate amount of the Canadian Facility L/C Obligations exceeds the Canadian Facility L/C Sublimit at such time, the Canadian Borrowers and, if applicable, the U.S. Borrowers shall pay to the Canadian Agent at the office designated for payment on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Canadian Facility L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Canadian Borrowers or the U.S. Borrowers, as applicable, to the applicable Issuing Lenders and the Canadian Facility Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Canadian Agent.
(d) The U.S. Borrowers shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans. Upon the incurrence by the Parent Borrower or any Restricted Subsidiary of any Specified Refinancing Revolving Loans, the Borrowers shall prepay an aggregate principal amount of the Tranche of Revolving Credit Loans being refinanced in an amount equal to 100% of all Net Proceeds received therefrom promptly (and in any event within three Business Days) following receipt thereof by the Parent Borrower or such Restricted Subsidiary.
(de) Prepayments pursuant to Subsection Sections 4.4(b) and 4.4(c) shall be applied, first, to prepay Swingline Swing Line Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding Bankers’ Acceptance or L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(ef) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Section 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Section 2.3.
(g) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Sections 4.4(b) or 4.4(c).
(fh) Notwithstanding the foregoing provisions of this Subsection Section 4.4, if at any time any prepayment of the Loans pursuant to Subsection Section 4.4(a), Section 4.4(b) or 4.4(bSection 4.4(c) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection Section 4.12 as a result of Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans with the Administrative Agent or the Canadian Agent, as applicable (which deposit must be equal in amount to the amount of such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent or the Canadian Agent, as applicable, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection Section 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Eurocurrency Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans shall continue to bear interest in accordance with Subsection Section 4.1 until such unpaid Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans or the related portion of such Eurodollar Loans Eurocurrency Loans, Bankers’ Acceptances or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Herc Holdings Inc)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Term Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountit, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty (except as provided in Subsection 4.5(b) or Subsection 4.5(c)), upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.1:00 P.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyLoans), or prior to 11:00 A.M.1:00 P.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Term Loans, the identity of applicable Tranche being repaid, and if a combination thereof, the prepaying Borrowerprincipal amount allocable to each, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Eurodollar Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each andeach. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the case of any prepayment of Reimbursement Obligations, Borrower (by written notice to the date and amount of prepayment, Administrative Agent on or prior to the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of specified effective date) if such Reimbursement Obligationscondition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, 500,000; provided that, notwithstanding the foregoing, any Term Loan may be prepaid in its entirety. Each prepayment of Initial Term Loans pursuant to this Subsection 4.4(a) made on or prior to the second anniversary of the Closing Date in connection with a Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(b). Each prepayment of Tranche B Term Loans pursuant to this Subsection 4.4(a) made within six months of the Extension Amendment No. 1 Effective Date in connection with a Tranche B Repricing Transaction shall be accompanied by the payment of the fee required by Subsection 4.5(c).
(bi) On any day The Borrower shall, in accordance with Subsection 4.4(c), prepay the Term Loans to the extent required by Subsection 8.4(b) (other than during an Agent Advance Periodsubject to Subsection 8.4(c)), (ii) if on which or after the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account ofClosing Date, the Borrowers exceeds the Borrowing Base Borrower or any of its Restricted Subsidiaries shall Incur Indebtedness for borrowed money (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timeexcluding Indebtedness permitted pursuant to Subsection 8.1), the Borrowers shall Borrower shall, in accordance with Subsection 4.4(c), prepay on such day the principal of outstanding Revolving Credit Term Loans in an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such excess. If, after giving effect Net Cash Proceeds applied (to the prepayment extent Borrower or any of all outstanding Revolving Credit its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans, in each case with such prepayment to be made on or before the fifth Business Day following notice given to each Lender of the Prepayment Date, as contemplated by Subsection 4.4(d), and (iii) the Borrower shall, in accordance with Subsection 4.4(c), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about November 3, 2013) (each, an “ECF Payment Date”), in an amount equal to (A)(1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the L/C Obligations exceeds extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to Subsection 4.4(a) during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the Borrowing Base at aggregate principal amount of Term Loans (including Incremental Term Loans) and Incremental Revolving Loans to the extent accompanied by a corresponding permanent Incremental Revolving Commitment reduction prepaid pursuant to Subsection 4.4(a) during the period beginning with the day following the last day of such time (based Fiscal Year and ending on the Borrowing Base Certificate ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to Subsection 4.4(h) or the other clauses of this Subsection 4.4(b) shall be so designated), (y) any ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (z) below), and (z) the aggregate principal amount of ABL Facility Loans prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior ABL Facility during the period beginning with the day following the last deliveredday of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Subsection 4.4(b)(iii) (provided that no prepayments made pursuant to the other clauses of this Subsection 4.4(b) shall be so designated), in each case, excluding prepayments funded with proceeds from the Incurrence of long-term Indebtedness (including a revolving credit facility) (the amount described in this clause (A), the Borrowers shall pay “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the Administrative Agent extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase other Indebtedness that is pari passu with the Term Loan Facility Obligations on a pro rata basis with the Term Loans; provided that such day an amount of cash and/or Cash Equivalents equal percentage in clause (1) above shall be reduced to 0% if the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held Consolidated Total Leverage Ratio as security for all obligations of the Borrowers to last day of the Issuing Lenders immediately preceding Fiscal Year was less than 2.50:1.00. Nothing in this Subsection 4.4(b) shall limit the rights of the Agents and the Revolving Credit Lenders hereunder set forth in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative AgentSection 9.
(c) The Borrowers shall prepay all Swingline Subject to the last two sentences of Subsection 4.4(d) and Subsection 4.4(g), each prepayment of Term Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be appliedallocated pro rata among the Initial Term Loans, firstthe Tranche B Term Loans, the Incremental Term Loans and the Extended Term Loans; provided, that at the request of the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to prepay Swingline any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, secondto such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Subsection 4.4(a) and (b) shall be applied within each Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, to prepay Revolving Credit Loans then outstandingif no such direction is given, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory in direct order of maturity).
(d) The Borrower shall give notice to the Administrative AgentAgent of any mandatory prepayment of the Term Loans (x) pursuant to Subsection 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Subsection 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(i), on or before the date specified in Subsection 8.4(b) and (ii) in the case of mandatory prepayments pursuant to Subsection 4.4(b)(ii) or (iii), on or before the date specified in Subsection 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Subsection 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including any Junior Debt, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement. Notwithstanding any other provision of this Subsection 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Subsection 4.4(a) or 4.4(b), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(e) For avoidance Amounts prepaid on account of doubtTerm Loans pursuant to Subsection 4.4(a), the Commitments shall (b) or (h) may not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b)reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(a) or 4.4(b(b) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such the Borrower) or (ii) make a prepayment of the Revolving Credit Term Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Subsection 4.4(b) would result in material adverse tax consequences to the Borrower or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower shall take commercially reasonable actions to permit repatriation of the proceeds subject to such prepayments in order to effect such prepayments without incurring material adverse tax consequences.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Term Loans added pursuant to Subsections 2.6, 2.7 2.6 and 2.8, as applicable, or pursuant to any other credit or letter of credit facility added pursuant to Subsection 2.6 or 11.1(e).
(h) Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default under Subsection 9.1(a) or (f) has occurred and is continuing, the Borrower may prepay the outstanding Term Loans on the following basis:
(i) The Borrower shall have the right to make a voluntary prepayment of Term Loans at a discount to par (such prepayment, the “Discounted Term Loan Prepayment”) pursuant to a Borrower Offer of Specified Discount Prepayment, a Borrower Solicitation of Discount Range Prepayment Offers, or a Borrower Solicitation of Discounted Prepayment Offers, in each case made in accordance with this Subsection 4.4(h); provided that the Borrower shall not initiate any action under this Subsection 4.4(h) in order to make a Discounted Term Loan Prepayment unless (1) at least ten Business Days shall have passed since the consummation of the most recent Discounted Term Loan Prepayment as a result of a prepayment made by the Borrower on the applicable Discounted Prepayment Effective Date or (2) at least three Business Days shall have passed since the date the Borrower was notified that no Lender was willing to accept any prepayment of any Term Loan at the Specified Discount, within the Discount Range or at any discount to par value, as applicable, or in the case of Borrower Solicitation of Discounted Prepayment Offers, the date of the Borrower’s election not to accept any Solicited Discounted Prepayment Offers made by a Lender. Each Lender participating in any Discounted Term Loan Prepayment acknowledges and agrees that in connection with such Discounted Term Loan Prepayment, (1) the Borrower then may have, and later may come into possession of, information regarding the Term Loans or the Loan Parties hereunder that is not known to such Lender and that may be material to a decision by such Lender to participate in such Discounted Term Loan Prepayment (“Excluded Information”), (2) such Lender has independently and, without reliance on the Borrower, any of its Subsidiaries, the Administrative Agent or any of their respective Affiliates, has made its own analysis and determination to participate in such Discounted Term Loan Prepayment notwithstanding such Lender’s lack of knowledge of the Excluded Information and (3) none of the Borrower, its Subsidiaries, the Administrative Agent, or any of their respective Affiliates shall have any liability to such Lender, and such Lender hereby waives and releases, to the extent permitted by law, any claims such Lender may have against the Borrower, its Subsidiaries, the Administrative Agent, and their respective Affiliates, under applicable laws or otherwise, with respect to the nondisclosure of the Excluded Information. Each Lender participating in any Discounted Term Loan Prepayment further acknowledges that the Excluded Information may not be available to the Administrative Agent or the other Lenders. Any Term Loans prepaid pursuant to this Subsection 4.4(h) shall be immediately and automatically cancelled.
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Optional and Mandatory Prepayments. (a) Each of the Borrowers Borrower may at any time and from time to time prepay the Loans made by the Lenders to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountsuch Borrower, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice substantially in the form of Exhibit N delivered by the Borrower Representative to the Administrative Agent prior to no later than 11:00 A.M., New York City time time, three Business Days prior to the date of prepayment (thereto, in the case of Eurodollar Loans or BA Equivalent Loans Loans, and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to no later than 11:00 A.M., New York City time at least one Business Day prior to time, on the date of requested prepayment (date, in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such , which notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, specify the date and amount of prepayment, the identity name of the applicable Letter Borrower and whether the prepayment is of Credit Eurodollar Loans or Letters ABR Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the last day of Credit and the amount allocable Interest Period applicable thereto, such Borrower shall also pay any amounts owing pursuant to each of such Reimbursement ObligationsSection 2.14. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected relevant Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at except in the end case of Loans that are ABR Loans) accrued interest to such date on the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basisamount prepaid. Partial prepayments pursuant to this Subsection 4.4(a) of ABR Loans and Eurodollar Loans for all Borrowers shall be in multiples an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 or Cdn$1,000,000in excess thereof (or, as applicablein the case of ABR Loans, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entiretyentire principal amount thereof).
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loanson any date, the aggregate amount of the Secured L/C Obligations exceeds of any Borrower exceed the Borrowing Base at of such time Borrower on such date, such Borrower (based on or the Borrowing Base Certificate last delivered), the Borrowers Borrower Representative) shall within one Business Day of such date pay or deliver to the Administrative Agent on such day Custodian, to be held in accordance with the Security Agreement and the applicable Collateral Account Control Agreement, an amount of cash and/or Cash Equivalents Eligible Securities sufficient to cause the Borrowing Base of such Borrower to be at least equal to the amount of such excess (up to a maximum amount equal to such aggregate Secured L/C Obligations at of such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative AgentBorrower.
(c) The If, on any date, the Total Extensions of Credit outstanding on such date exceed 102% of the Total Commitments in effect on such date, the Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing shall, upon demand by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
, promptly (e) For avoidance of doubtbut in any event, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment within three Business Days of the date of the Company’s receipt of such demand from the Administrative Agent) prepay any then outstanding Loans pursuant and/or cash collateralize to Subsection 4.4(a) or 4.4(b) would resultthe satisfaction of the Administrative Agent any then outstanding Letters of Credit in an aggregate principal and/or face amount such that, after giving effect thereto and treating such cash collateralized Letters of Credit as being not then outstanding, the Total Extensions of Credit do not exceed the Total Commitments. Any prepayment of a Eurodollar Loan pursuant to this Section 2.5(c) shall be accompanied by interest accrued and unpaid to the procedures set forth in this Agreementdate of such prepayment on the principal so prepaid and, in any Borrower incurring breakage costs under Subsection 4.12 as if such prepayment is made on a result of Eurodollar Loans or BA Equivalent Loans being prepaid day other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect applicable to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as Loan, the applicable Borrower shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the also pay any amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits owing pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaidSection 2.14.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the The Borrowers may at any time and from time to time prepay the Eurodollar Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountRevolving Offshore Loans, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty except as specified in subsection 5.15, upon at least four Banking Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.Agent, New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, specifying the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Revolving Offshore Loans or a combination thereof, and, in each case if of a combination thereof, the principal amount allocable to each andeach. The Borrowers may at any time and from time to time prepay Base Rate Loans and Swing Line Loans, in whole or in part, without premium or penalty upon, in the case of any prepayment Base Rate Loans, at least one Banking Day's irrevocable notice (which notice must be received by the 47 41 Administrative Agent prior to 8:30 A.M., San Francisco time, on such Banking Day) and in the case of Reimbursement ObligationsSwing Line Loans on same day notice (which notice must be received by the Administrative Agent prior to 11:00 A.M., San Francisco time, on the date of repayment) to the Administrative Agent, specifying the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected relevant Lender and, if such notice relates to a prepayment of Revolving Offshore Loans, the European Payment Agent thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a with, in the case of Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) Loans and Offshore Currency Loans, any amounts payable pursuant to Subsection 4.12, subsection 5.15 and accrued interest to such date on the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basisamount prepaid. Partial prepayments pursuant of the Term Loans shall be applied to this Subsection 4.4(a) the installments of principal thereof ratably in accordance with the then remaining amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed. Partial prepayments of Eurodollar Loans, Revolving Offshore Loans and Base Rate Loans shall be in multiples a principal amount, as to each such Type of Loan, of $5,000,000 (or the Offshore Currency Equivalent thereof, in the case of Revolving Offshore Loans) or a whole multiple of $1,000,000 (or Cdn$1,000,0001,000,000 units in the relevant Eligible Offshore Currency, as applicable, provided that, notwithstanding in the foregoing, any Loan case of Revolving Offshore Loans) in excess thereof. Partial prepayments of Swing Line Loans shall be in an aggregate principal amount of $500,000 or a whole multiple of $50,000 in excess thereof. Revolving Loans may not be prepaid in its entiretyif any Swing Line Loans are outstanding at such time.
(b) On A Subsidiary Borrower may at any day time and from time to time prepay Fronted Offshore Loans, in whole or in part, without premium or penalty except as specified in subsection 5.15, upon at least four Banking Days' irrevocable notice (or such other than during number of days as may be specified in the Fronting Bank Addendum of such Fronting Lender in its discretion) to the relevant Fronting Lender and the Administrative Agent, specifying the date and amount of prepayment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with any amounts payable pursuant to subsection 5.15 and accrued interest to such date on the amount prepaid. Partial prepayments of Fronted Offshore Loans shall be in such minimum amounts as shall be specified in the Fronting Bank Addendum of the relevant Fronting Lender.
(c) If, on any day, (i) the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans exceeds an Agent Advance Periodamount equal to 103% of the Offshore Currency Sublimit for all Offshore Currency Loans, (ii) on which the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans in any Offshore Currency exceeds an amount equal to 103% of the Offshore Currency Sublimit for Offshore Currency Loans in such Offshore Currency or (iii) the Aggregate Lender Exposure or the unpaid balance of Outstanding R/C Extensions of Credit to, or for exceeds the account ofAggregate Revolving Commitment on such date, the Parent Borrowers shall, without notice or demand, immediately repay (or cause the relevant Subsidiary Borrower to repay) such of the outstanding Loans in an aggregate principal amount such that, after giving effect thereto, (x) the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans does not exceed the Offshore Currency Sublimit for all Offshore Currency Loans, (y) the Dollar Equivalent of the aggregate outstanding principal amount of Offshore Currency Loans in each Offshore Currency does not exceed the Offshore Currency Sublimit for Offshore Currency Loans in such Offshore Currency and (z) the Aggregate Outstanding R/C Extensions of Credit does not exceed the Aggregate Revolving Commitment, together with interest accrued to the date of such payment or prepayment on the principal so prepaid and any amounts payable under subsection 5.15 in connection therewith. Any prepayment of Revolving Loans pursuant to clause (iii) of the immediately preceding sentence shall first be applied to prepay any outstanding Swing Line Loans and then be applied to such Revolving Loans as the Borrowers may determine. The Parent Borrowers may in lieu of prepaying Offshore Currency Loans in order to comply with this paragraph deposit amounts in a Cash Collateral Account equal to the aggregate principal amount of Offshore Currency Loans required to be prepaid. To the extent that after giving effect to any prepayment of Loans required by this paragraph, the Aggregate Outstanding R/C Extensions of Credit at such time exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments Aggregate Revolving Commitment at such time, the Parent Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. Ifshall, after giving effect to the prepayment of all outstanding Revolving Credit Loanswithout notice or demand, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder immediately deposit in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on Cash Collateral Account upon terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.48 42
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Young & Rubicam Inc)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may The Borrower may, at any time and from time to time time, prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountLoans, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty (except, with respect to Eurodollar Loans that are prepaid on a date other than the last day of the Interest Period with respect thereto, as provided under subsection 4.11), upon (i) in the case of prepayments of Eurodollar Loans, at least three Business Days' irrevocable notice (which notice may be given by telephone (to be promptly confirmed in writing, including by facsimile) to the Borrower Representative Administrative Agent and (ii) in the case of prepayments of ABR Loans (other than Swing Line Loans), irrevocable notice (which notice may be given by telephone (to be promptly confirmed in writing, including by facsimile)) to the Administrative Agent prior to 11:00 11:30 A.M., New York City time three Business Days prior to time, on the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specifysuch prepayment, in the each case of any prepayment of Loans, the identity of the prepaying Borrower, specifying the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if of a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligationseach. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 4.11 in connection therewith and, in the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment case of prepayments of the Swingline Term Loans then outstandingonly, second, accrued interest to payment such date on the amount prepaid. Amounts prepaid on account of the Revolving Credit Term Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory may not be reborrowed and will be applied to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) installments thereof in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basisthe scheduled order of maturity thereof. Partial prepayments pursuant to under this Subsection 4.4(asubsection 4.1(a) shall be be, in multiples the case of Eurodollar Loans, in an aggregate principal amount of $10,000,000 or a whole multiple of $1,000,000 in excess thereof and in the case of ABR Loans, in an aggregate principal amount of $5,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid a whole multiple of $1,000,000 in its entiretyexcess thereof.
(b) On If, at any day (other than during an Agent Advance Period) on which time, the Aggregate Lender Exposure or the unpaid balance of Outstanding Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds time exceed (x) the Borrowing Base at such time or (based on the Borrowing Base Certificate last delivered)y) if applicable, the Borrowers shall pay Interim Maximum Amount, the Borrower shall, without notice or demand, immediately repay Swing Line Loans then outstanding and/or, after the Swing Line Loans have been paid in full, Revolving Loans in an aggregate principal amount equal to the Administrative Agent on such day an amount lesser of cash and/or Cash Equivalents equal to (i) the amount of such excess and (up to a maximum ii) the aggregate principal amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders Swing Line Loans and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory together with interest accrued to the Administrative Agent.
(e) For avoidance date of doubt, such payment or prepayment on the Commitments shall not be correspondingly reduced by principal so prepaid and any amounts payable under subsection 4.11 in connection therewith. To the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, extent that after giving effect to any prepayment of Swing Line Loans and Revolving Loans required by the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, thenpreceding sentence, the relevant Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time or the Interim Maximum Amount, if applicable, the Borrower mayshall, so long as no Default without notice or Event of Default shall have occurred and be continuingdemand, immediately deposit in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on Collateral Account upon terms reasonably satisfactory to the Administrative Agent with such cash collateral an amount equal to be directly applied upon the first occurrence thereafter lesser of (i) the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or aggregate then outstanding L/C Obligations and (ii) make a the amount of such remaining excess. The Administrative Agent shall apply any cash deposited in the Collateral Account (to the extent thereof) to pay any Reimbursement Obligations which become due thereafter. To the extent that after giving effect to any prepayment of the Revolving Loans and cash deposits required by the preceding sentences, the Aggregate Outstanding Extensions of Credit at such time exceed the Borrowing Base at such time or the Interim Maximum Amount, if applicable, the Borrower shall, without notice or demand, immediately repay the Term Loans in accordance the scheduled order of maturity thereof in an aggregate principal amount equal to the lesser of (i) the amount of such excess and (ii) the aggregate principal amount of Term Loans then outstanding, together with Subsection 4.4(ainterest accrued to the date of such payment or prepayment on the principal so prepaid and any amounts payable under subsection 4.11 in connection therewith. The Borrower shall also prepay the Revolving Loans to the extent required to comply with subsection 3.16.
(c) with The Borrower shall repay the Revolving Loans, within three Business Days after the receipt by the Borrower or any Restricted Subsidiary of any Asset Sale Proceeds in respect of the Collateral, in an amount equal to a portion such Asset Sale Proceeds.
(up to 100%d) of The Borrower agrees that all available funds in the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans Collateral Account (which prepaymentexcept for Asset Sale Proceeds) shall be applied first, together with any deposits pursuant to clause (i) abovepro rata, must be equal in amount to the amount of such Eurodollar the Swing Line Loans or BA Equivalent Loans not immediately prepaid); provided thatand any Reimbursement Obligations then outstanding, notwithstanding anything in this Agreement next to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate outstanding principal amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Revolving Loans; provided that, in the case of either clause then (i) on any Business Day that any funds are on deposit in the Collateral Account and no Default or (ii)Event of Default has occurred and is continuing, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case Borrower may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize direct the Administrative Agent to enter into any such amendments) transfer to the extent necessary Borrower's disbursement account funds up to reflect differing amounts payablethe difference between the Borrowing Base as reflected in the most recent Borrowing Base Certificate and 100% of the remaining Secured Obligations and (ii) on any Business Day that any funds are on deposit in the Collateral Account and a Default or Event of Default has occurred and is continuing, the Borrower may direct the Administrative Agent to transfer to the Borrower's disbursement account funds up to the difference between the Borrowing Base as reflected in the most recent Borrowing Base Certificate and priorities 105% of payments, the remaining Secured Obligations. The Borrower shall utilize funds on deposit in the Collateral Account that are available to Lenders participating in any new classes or tranches of loans added it pursuant to Subsections 2.6, 2.7 and 2.8, as applicablethe terms hereof prior to requesting Revolving Loans to be made hereunder.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Service Merchandise Co Inc)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it (other than Bankers’ Acceptance Loans which may not be prepaid prior to the maturity date of the underlying B/A Instrument) and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon at least three (3) Business Days’ irrevocable notice by the applicable Borrower Representative to the U.S. Administrative Agent prior to 11:00 A.M.or the Canadian Administrative Agent, New York City time three Business Days prior to the date of prepayment as applicable (in the case of Eurodollar Eurocurrency Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyDollars), prior to 11:00 A.M., New York City time at least one (1) Business Day prior Day’s irrevocable notice by the applicable Borrower to the date of prepayment U.S. Administrative Agent or the Canadian Administrative Agent, as applicable (in the case of (x) ABR Loans and Canadian Prime Rate Loans other than Swingline LoansSwing Line Loans and (y) Reimbursement Obligations) or same-day irrevocable notice by the applicable Borrower Representative to the U.S. Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Swing Line Loans); provided that, if a notice of prepayment in connection with a repayment of all outstanding Obligations outstanding is given in Dollars or connection with a Designated Foreign Currency))conditional notice of termination of Commitments as contemplated by subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with subsection 2.3. Such notice shall specify, specify (A) in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Incremental Term Loans, RCF Loans or Swingline Swing Line Loans, or a combination thereof, thereof and (ii) of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, and (B) in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the U.S. Administrative Agent or the Canadian Administrative Agent, as applicable, shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to the proviso contained in the third preceding sentence) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 4.12 and accrued interest to such date on the Revolving Credit amount prepaid. Partial prepayments of Incremental Term Loans of any Tranche pursuant to this subsection shall be applied ratably to Incremental Term Loans outstanding under such Tranche and shall reduce the required amortization of such Incremental Term Loans as provided in the applicable Incremental Amendment. Prepayments of Loans (other than Incremental Term Loans) and the Reimbursement Obligations pursuant to this Section subsection by a Borrower shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit RCF Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding Bankers’ Acceptance Loans or L/C Obligation Obligations on terms reasonably satisfactory to the U.S. Administrative AgentAgent (in each case, outstanding with respect to such Borrower); provided, further, that any pro rata calculations required to be made pursuant to this Subsection subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency Canadian Dollars shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples of $1,000,000 (or, in the case of partial prepayments made by the Canadian Borrowers, Cdn$1,000,000) (or, if the Loans then outstanding are less than $1,000,000 or Cdn$1,000,000Cdn $1,000,000, as applicable, such lesser amount), provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) If on or after the Closing Date (i) the Parent Borrower or any of its Subsidiaries shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 8.2) pursuant to a public offering or private placement or otherwise, (ii) the Parent Borrower or any of its Subsidiaries shall consummate an Asset Sale, (iii) a Recovery Event occurs or (iv) the Parent Borrower or any of its Subsidiaries shall enter into a Sale and Leaseback Transaction, then, in each case, to the extent that and for so long as Available RCF Commitments are less than $250,000,000 immediately after giving effect to such incurrence of Indebtedness, Asset Sale, Recovery Event or Sale and Leaseback Transaction, the relevant Borrowers shall prepay, in accordance with subsection 4.4(e), the Loans (other than Bankers’ Acceptance Loans which may not be prepaid prior to the maturity date of the underlying B/A Instrument or Incremental Term Loans made to Canadian Xxxxx) and cash collateralize the Bankers’ Acceptance Loans and the L/C Obligations in an amount equal to the lesser of: (A) (x) in the case of the incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof; (y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts; and (z) in the case of any such Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof and (B) the amount of such prepayments required in order for Available RCF Commitments to be $250,000,000 or more, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds except that, in the case of clause (y) above, if any such Net Cash Proceeds are eligible to be reinvested in accordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Parent Borrower has not elected to reinvest such proceeds (or portion thereof, as the case may be), such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Parent Borrower to such effect is delivered to the U.S. Administrative Agent in accordance with such definition and (2) the last day of the period within which a certificate setting forth such election is required to be delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Agents and the Lenders set forth in Section 9.
(i) On any day (other than during an Agent Advance Period) on which the Aggregate U.S. RCF Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) or minus (B) the total Commitments sum of (x) the excess of (1) the Aggregate Canadian RCF Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such timetime (based on the Borrowing Base Certificate last delivered) and (y) the unpaid balance of Extensions of Credit to, or for the account of, Canadian Xxxxx, the U.S. Borrowers shall prepay on such day the principal of outstanding Revolving Credit Canadian RCF Loans made to the U.S. Borrowers and, if required, U.S. RCF Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Canadian RCF Loans made to the U.S. Borrowers and U.S. RCF Loans, the aggregate amount of the U.S. RCF L/C Obligations and the Canadian RCF L/C Obligations with respect to the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) minus (B) the excess of (1) the Aggregate Canadian RCF Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall pay to the U.S. Administrative Agent or the Canadian Administrative Agent, as applicable, at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the Issuing Lenders and the Revolving U.S. RCF Lenders hereunder ratably in accordance with the Obligations relating to the U.S. RC Facility then held by such U.S. RCF Lender in a cash collateral account to be established by, and under the sole dominion and control of, the U.S. Administrative Agent.
(ii) Without duplication of any mandatory prepayment required under subsection 4.4(c)(i) above, on any day (other than during an Agent Advance Period) on which the Aggregate Canadian RCF Lender Exposure with respect to the Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate last delivered) over (2) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers and Canadian Xxxxx, the Canadian Borrowers shall prepay on such day the principal of Canadian RCF Loans made to them (other than Bankers’ Acceptance Loans where the underlying B/A Instruments have not matured) in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian RCF Loans (other than Bankers’ Acceptance Loans where the underlying B/A Instruments have not matured), the aggregate amount of outstanding Bankers’ Acceptance Loans and the Canadian RCF L/C Obligations with respect to the Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate last delivered) over (2) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers and Canadian Xxxxx, the Canadian Borrowers shall pay to the Canadian Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the sum of the aggregate face amount of the outstanding Bankers’ Acceptance Loans and the amount of the Canadian RCF L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Canadian Borrowers to the applicable Issuing Lenders and the Canadian RCF Lenders hereunder ratably in accordance with the Obligations relating to the Canadian RC Facility then held by such Canadian RCF Lender in a cash collateral account to be established by, and under the sole dominion and control of, the Canadian Administrative Agent.
(iii) On any day on which the Aggregate U.S. RCF Lender Exposure exceeds the Total U.S. RCF Commitment at such time, the U.S. Borrowers shall prepay on such day the principal of U.S. RCF Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding U.S. RCF Loans, the aggregate amount of the U.S. RCF L/C Obligations exceeds the Total U.S. RCF Commitment at such time, the U.S. Borrowers shall pay to the U.S. Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the U.S. RCF L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the applicable Issuing Lenders and the U.S. RCF Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the U.S. Administrative Agent.
(civ) On any day on which the Aggregate Canadian RCF Lender Exposure exceeds the Total Canadian RCF Commitment at such time, the Canadian Borrowers and, if applicable, the U.S. Borrowers shall prepay on such day the principal of Canadian RCF Loans (other than Bankers’ Acceptance Loans where the underlying B/A Instruments have not matured), in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian RCF Loans (other than Bankers’ Acceptance Loans where the underlying B/A Instruments have not matured), the Dollar Equivalent of the aggregate amount of the Canadian RCF L/C Obligations and the aggregate face amount of the outstanding Bankers’ Acceptance Loans exceeds the Total Canadian RCF Commitment at such time, the Canadian Borrowers and, if applicable, the U.S. Borrowers shall pay to the Canadian Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the sum of the aggregate face amount of the outstanding Bankers’ Acceptance Loans and the aggregate amount of the Canadian RCF L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Canadian Borrowers or the U.S. Borrowers, as applicable, to the applicable Issuing Lenders and the Canadian RCF Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Canadian Administrative Agent.
(v) On any day (other than during an Agent Advance Period) on which the unpaid balance of Extensions of Credit to, or for the account of, Canadian Xxxxx exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) minus (B) the sum of (x) the excess of (1) the amount of the Aggregate Canadian RCF Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) and (y) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers, Canadian Xxxxx shall prepay on such day the principal of outstanding Canadian RCF Loans made to Canadian Xxxxx in an amount equal to such excess.
(d) The U.S. Borrowers shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit RCF Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans Prepayments pursuant to Subsection 4.4(a) or subsection 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 shall be applied as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially follows:
(i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid)first, to be held as security for the obligations of such Borrowers to make such prepayment any mandatory repayments required pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaidsubsection 4.4(c); provided that, notwithstanding anything in this Agreement any proceeds received by the Canadian Borrowers or any of their respective Subsidiaries and required to the contrarybe used for a mandatory prepayment pursuant to subsection 4.4(b) shall be applied solely to Canadian RCF Loans outstanding and/or to cash collateralize Bankers’ Acceptance Loans and Canadian RCF L/C Obligations;
(ii) second, none of the Borrowers may request at any Extension of Credit under the Commitments that would reduce the aggregate amount of time the Available Loan RCF Commitments are less than $250,000,000, to prepay outstanding RCF Loans in an aggregate principal amount necessary to increase the Available RCF Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans$250,000,000; provided that, in any proceeds received by the case Canadian Borrowers or any of either clause (itheir respective Subsidiaries and required to be used for a mandatory prepayment pursuant to subsection 4.4(b) or (ii), such unpaid Eurodollar shall be applied solely to Canadian RCF Loans or BA Equivalent outstanding and/or to cash collateralize Bankers’ Acceptance Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.and Canadian RCF L/C Obligations; and
(giii) third, to repay all remaining Obligations payable pursuant to this Agreement. Notwithstanding anything to the contrary hereincontained in this clause (e), this Subsection 4.4 may be amended (and in no event shall prepayments made by the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added Canadian Borrowers pursuant to Subsections 2.6subsection 4.4(b), 2.7 and 2.8, as applicable.4.4(c)(ii) or
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Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the applicable Borrower Representative to the Administrative Agent prior to 11:00 A.M.or the Canadian Agent, New York City time three Business Days prior to the date of prepayment as applicable (in the case of Eurodollar Eurocurrency Loans outstanding in Dollars or any Designated Foreign Currency, Bankers’ Acceptances or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day Day’s irrevocable notice by the applicable Borrower Representative to the Administrative Agent or the Canadian Agent, as applicable (in the case of (x) Swingline ABR Loans other than Swing Line Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)Canadian Dollars) or same-day irrevocable notice by the applicable Borrower to the Administrative Agent or the Canadian Agent, as applicable (in the case of Swing Line Loans). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Swing Line Loans, or a combination thereof, and (ii) of Eurodollar Eurocurrency Loans, Bankers’ Acceptances, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent or the Canadian Agent, as applicable, shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan Eurocurrency Loan, Bankers’ Acceptances or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 4.12 the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding Bankers’ Acceptances or L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection subsection 4.4(a) in respect to any Loan denominated in Canadian Dollars or a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000(or, as applicablein the case of (i) partial prepayments made by the Canadian Borrowers, Cdn$1,000,000 and (ii) Eurocurrency Loans outstanding in any Designated Foreign Currency, the Dollar Equivalent of an aggregate principal amount of at least approximately $1,000,000), provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) If on or after the Closing Date (i) the Parent Borrower or any of its Subsidiaries shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified in subsection 8.2) pursuant to a public offering or private placement or otherwise, (ii) the Parent Borrower or any of its Subsidiaries (other than any Special Purpose Subsidiary) shall make an Asset Sale pursuant to subsection 8.6(h), (iii) a Recovery Event occurs or (iv) the Parent Borrower or any of its Subsidiaries shall enter into a Sale and Leaseback Transaction, then, in each case, to the extent that and for so long as Available Loan Commitments are less than $250,000,000 immediately after giving effect to such incurrence of Indebtedness, Asset Sale, Recovery Event or Sale and Leaseback Transaction, the Borrowers shall prepay, in accordance with subsection 4.4(e), the Loans and cash collateralize the Bankers’ Acceptances and the L/C Obligations in an amount equal to the lesser of: (A) (x) in the case of the incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof; (y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts; and (z) in the case of any such Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof and (B) the amount of such prepayments required in order for Available Loan Commitments to be $250,000,000 or more, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds except that, in the case of clause (y), if any such Net Cash Proceeds are eligible to be reinvested in accordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Parent Borrower has not elected to reinvest such proceeds (or portion thereof, as the case may be), such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Parent Borrower to such effect is delivered to the Administrative Agent in accordance with such definition and (2) the last day of the period within which a certificate setting forth such election is required to be delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Agents and the Lenders set forth in Section 9.
(i) On any day (other than during an Agent Advance Period) on which the Aggregate U.S. Facility Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) or minus (B) the total Commitments excess of (1) the Aggregate Canadian Facility Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such timetime (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall prepay on such day the principal of outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers and, if required, U.S. Facility Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans made to the U.S. Borrowers and U.S. Facility Revolving Credit Loans, the aggregate amount of the U.S. Facility L/C Obligations and the Canadian Facility L/C Obligations with respect to the U.S. Borrowers exceeds the difference of (A) the U.S. Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) minus (B) the excess of (1) the Aggregate Canadian Facility Lender Exposure (with respect to the Canadian Borrowers) over (2) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the U.S. Borrowers shall pay to the Administrative Agent or the Canadian Agent, as applicable, at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(cii) Without duplication of any mandatory prepayment required under subsection 4.4(c)(i) above, on any day (other than during an Agent Advance Period) on which the Aggregate Canadian Facility Revolving Credit Exposure with respect to the Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate last delivered) over (2) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers, the Canadian Borrowers shall prepay on such day the principal of Canadian Facility Revolving Credit Loans made to them in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans, the aggregate amount of the Canadian Facility L/C Obligations with respect to the Canadian Borrowers exceeds the sum of (A) the Canadian Borrowing Base at such time (based on the Borrowing Base Certificate last delivered) plus (B) the excess of (1) the U.S. Borrowing Base (based on the Borrowing Base Certificate last delivered) over (2) the unpaid balance of Extensions of Credit to, or for the account of, the U.S. Borrowers, the Canadian Borrowers shall pay to the Canadian Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Canadian Facility L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Canadian Borrowers to the applicable Issuing Lenders and the Canadian Facility Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Canadian Agent.
(iii) On any day on which the Aggregate U.S. Facility Lender Exposure exceeds the Total U.S. Facility Commitment at such time, the U.S. Borrowers shall prepay on such day the principal of U.S. Facility Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding U.S. Facility Revolving Credit Loans, the aggregate amount of the U.S. Facility L/C Obligations exceeds the Total U.S. Facility Commitment at such time, the U.S. Borrowers shall pay to the Administrative Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the U.S. Facility L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the U.S. Borrowers to the applicable Issuing Lenders and the U.S. Facility Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(iv) On any day on which the Dollar Equivalent of the Aggregate Canadian Facility Revolving Credit Exposure exceeds the Total Canadian Facility Commitment at such time, the Canadian Borrowers and, if applicable, the U.S. Borrowers shall prepay on such day the principal of Canadian Facility Revolving Credit Loans, in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Canadian Facility Revolving Credit Loans, the Dollar Equivalent of the aggregate amount of the Canadian Facility L/C Obligations exceeds the Total Canadian Facility Commitment at such time, the Canadian Borrowers and, if applicable, the U.S. Borrowers shall pay to the Canadian Agent at the Payment Office on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to the Canadian Facility L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Canadian Borrowers or the U.S. Borrowers, as applicable, to the applicable Issuing Lenders and the Canadian Facility Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Canadian Agent.
(d) The U.S. Borrowers shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(de) Prepayments pursuant to Subsection subsections 4.4(b) and 4.4(c) shall be applied, first, to prepay Swingline Swing Line Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding Bankers’ Acceptance or L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Parent Borrower may at any time and from time to time prepay the Loans made to it and and, in accordance with Section 3.5, the Reimbursement Obligations Amounts in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection Section 4.12, without premium or penalty, upon irrevocable at least three Business Days’ notice by the Parent Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Eurocurrency Loans outstanding and (y) Reimbursement Amounts outstanding in the Designated Foreign Currency), or at least one Business Day’s notice by the Parent Borrower to the Administrative Agent (in the case of (x) ABR Loans and (y) Reimbursement Obligations Amounts outstanding in Dollars or a Designated Foreign Currency)Dollars). Such notice shall specify, in the case of any prepayment of Loans, the identity Tranche being prepaid (which, at the discretion of the prepaying Parent Borrower, may be the Tranche B Term Loans, the Tranche B-1 Term Loans, the Tranche B-2 Term Loans, any Incremental Loans or any Extended Tranche and/or a combination thereof), and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement ObligationsAmounts, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement ObligationsAmounts. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Parent Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and is not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, Section 4.12 and accrued interest to such date on the Revolving Credit amount prepaid. Partial prepayments of (1) the Tranche B Term Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect applied pro rata to the prepayment respective installments of all outstanding Revolving Credit Loansprincipal thereof or as otherwise directed by the Parent Borrower, (2) the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Tranche B-1 Term Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(bthis Section 4.4(a) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory applied pro rata to the Administrative Agent.
(e) For avoidance respective installments of doubt, the Commitments shall not be correspondingly reduced principal thereof or as otherwise directed by the amount of any prepayments of Revolving Credit LoansParent Borrower and (3, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f3) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Tranche B-2 Term Loans pursuant to Subsection this Section 4.4(a) or 4.4(b) would result, after giving effect shall be applied pro rata to the procedures set forth in this Agreement, in any respective installments of principal thereof or as otherwise directed by the Parent Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on and (4) the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment Reimbursement Amounts pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.Section
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon at least three Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time Obligations) and at least one Business Day prior Day's irrevocable notice by the Borrower to the date of prepayment Administrative Agent (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Swing Line Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencySwing Line Loans)). Such notice shall specify, specifying, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Term Loans, Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereofthereof or Swing Loans, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 4.12 and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Partial prepayments of (i) the Term Loans pursuant to this subsection shall be applied pro rata to the remaining installments, and (ii) the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) (other than of Swing Line Loans) shall be in multiples an aggregate principal amount of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid a whole multiple of $500,000 in its entiretyexcess thereof.
(b) On any day If the Borrower shall issue Senior Subordinated Notes (other than during Exchange Notes, as defined in the Senior Subordinated Credit Agreement) and the gross proceeds to the Borrower of such issuance exceed the then outstanding principal amount of Indebtedness under the Senior Subordinated Credit Agreement, then, after repayment in full of the Senior 52 46 Subordinated Credit Agreement, to the extent such excess proceeds permit, an Agent Advance Periodamount equal to $12,000,000 of such excess proceeds shall be used to permanently prepay the Term Loans.
(c) Commencing May 31, 1998, and on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account ofeach May 31 thereafter, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timeBorrower shall prepay, in accordance with subsection 4.4(j), the Borrowers shall prepay on such day Loans and cash collateralize the principal of outstanding Revolving Credit Loans L/C Obligations in an amount equal to such excess. 75% of the Borrower's Excess Cash Flow for the fiscal year ending on the preceding February 28.
(d) If, subsequent to the Effective Date, the Borrower or any of its Subsidiaries shall incur any Indebtedness for borrowed money (other than with respect to the Senior Subordinated Credit Agreement or the Senior Subordinated Notes and other Indebtedness permitted by subsection 8.2), then an amount equal to 100% of the Net Cash Proceeds thereof shall on the first Business Day after giving effect to receipt thereof be applied toward the prepayment of all outstanding the Loans and the permanent reduction of the Revolving Credit LoansCommitments in accordance with subsections 4.4(j), (k) and (l).
(e) If subsequent to the Effective Date, the aggregate amount Borrower or any of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last deliveredits Subsidiaries shall receive Net Cash Proceeds from any Asset Sales or dispositions permitted by subsection 8.6(g), the Borrowers shall pay to the Administrative Agent on such day 8.6(h) or 8.11 or not otherwise permitted by subsection 8.6, then an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations 100% of the Borrowers to Net Cash Proceeds (less the Issuing Lenders Reinvested Amount applicable thereto) thereof shall on the first Business Day after receipt thereof be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Lenders hereunder Commitments in a cash collateral account to be established byaccordance with subsections 4.4(j), (k) and under the sole dominion and control of, the Administrative Agent(l).
(cf) If subsequent to the Effective Date, the Borrower shall issue any Capital Stock, then (except for shares of Capital Stock of Holdings issued or sold to directors, officers and employees of, or consultants to, Holdings or any of its Subsidiaries) an amount equal to 100% of the Net Cash Proceeds thereof shall be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsections 4.4(j), (k) and (l).
(g) If subsequent to the Effective Date, the Borrower shall receive any Adjustment Payment, then an amount equal to 100% of the Debt Portion of such Adjustment Payment shall on the first Business Day after receipt thereof be applied toward the prepayment of the Loans and the permanent reduction of the Revolving Credit Commitments in accordance with subsections 4.4(j), 4.4(k) and 4.4(l).
(i) The Borrowers Borrower shall prepay all Swingline Swing Line Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(di) Prepayments pursuant to Subsection subsections 4.4(b), 4.4(d), 4.4(e), 4.4(f) and 4.4(g) shall be applied, first, to prepay Swingline Term Loans (applied pro rata to the then remaining installments thereof) then outstanding, second, to prepay Swing Line Loans then outstanding, secondthird, to prepay Revolving Credit Loans then outstanding, thirdfourth, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(eii) For avoidance Prepayments pursuant to subsection 4.4(c) shall be applied, first, to prepay Term Loans (applied first to the first two installments thereof due on or after the date of doubtsuch prepayment in the order of their maturities and second pro rata to the then remaining installments thereof) then outstanding, second, to prepay Swing Line Loans then outstanding, third, to prepay Revolving Credit Loans then outstanding, fourth, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(k) Amounts prepaid on account of Term Loans pursuant to subsection 4.4(b), 4.4(c), 4.4(d), 4.4(e), 4.4(f) and 4.4(g) may not be reborrowed.
(l) Subject to subsection 4.4(j), the Revolving Credit Commitments shall not be correspondingly permanently reduced by the amount of any all prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations collateral of L/C Obligations, in each case, Obligations made under Subsections 4.4(bsubsections 4.4(d), 4.4(e), 4.4(f) and 4.4(g).
(fm) Notwithstanding the foregoing provisions of this Subsection subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) subsection 4.4(b), 4.4(c), 4.4(d), 4.4(e), 4.4(f), 4.4(g), or 4.4(b4.4(h) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (ix) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), ) to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such the Borrower) or (iiy) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(asubsection 4.4
(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, 54 48 together with any deposits pursuant to clause (ix) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers Borrower may not request any Extension of Credit under the Revolving Credit Commitments that would reduce the aggregate amount of the Available Loan Revolving Credit Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (ix) or (iiy), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans Loans) or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) ABR Loans, (y) Swingline Loans and (yz) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000100,000, as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivereddelivered to the Administrative Agent, as adjusted for any Availability Reserve that has been established by the Administrative Agent, and has become effective, in accordance with Subsection 2.1(b), and for any decrease in or discontinuation of any Availability Reserve, after the delivery of such Borrowing Base Certificate) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivereddelivered to the Administrative Agent, as adjusted for any Availability Reserve that has been established by the Administrative Agent, and has become effective, in accordance with Subsection 2.1(b), and for any decrease in or discontinuation of any Availability Reserve, after the delivery of such Borrowing Base Certificate), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding andoutstanding, and last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections Subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided thatfurther, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Term Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountit, in whole or in part, subject to Subsection Section 4.12, without premium or penaltypenalty (except as provided in Section 4.5(b), (c) and, (e) and (f)), upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyLoans), or prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) (or same-day irrevocable notice such later time as may be agreed by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)its reasonable discretion). Such notice shall specify, in the case of any prepayment of Term Loans, the identity applicable Tranche being repaid (which, at the discretion of the prepaying Borrower, may be the Initial Term Loans, the Tranche B Term Loans, the Tranche C Term Loans, the Tranche D Term Loans, any Incremental Loans or any Extended Term Loans and/or a combination thereof), and if a combination thereof, the principal amount allocable to each, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Eurodollar Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each andeach. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the case of any prepayment of Reimbursement Obligations, Borrower (by written notice to the date and amount of prepayment, Administrative Agent on or prior to the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of specified effective date) if such Reimbursement Obligationscondition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection Section 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection Section 4.4(a) shall be in multiples equal to $1.0 million or a whole multiple of $1,000,000 or Cdn$1,000,000, as applicable, 500,000 in excess thereof; provided that, notwithstanding the foregoing, any Term Loan may be prepaid in its entirety. Each prepayment of Initial Term Loans pursuant to this Section 4.4(a) made on or prior to the first anniversary of the Closing Date in connection with an Initial Term Loan Repricing Transaction shall be accompanied by the payment of the fee required by Section 4.5(b). Each prepayment of Tranche B Term Loans pursuant to this Section 4.4(a) (except a prepayment required to be made pursuant to Section 8 of the First Incremental Amendment) made on or prior to December 31, 2013 in connection with a Tranche B Term Loan Repricing Transaction shall be accompanied by the payment of the fee required by Section 4.5(c). Each prepayment of Tranche C Term Loans pursuant to this Section 4.4(a) made on or prior to May 21, 2017 in connection with a Tranche C Term Loan Repricing Transaction shall be accompanied by the payment of the fee required by Section 4.5(e). Each prepayment of Tranche D Term Loans pursuant to this Section 4.4(a) made on or prior to November 22, 2017 in connection with a Tranche D Term Loan Repricing Transaction shall be accompanied by the payment of the fee required by Section 4.5(f).
(b) On any day (other than during an Agent Advance Periodi) The Borrower shall, in accordance with Section 4.4(c), prepay the Term Loans to the extent required by Section 8.3; (ii) if on which or after the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account ofClosing Date, the Borrowers exceeds the Borrowing Base Borrower or any of its Restricted Subsidiaries shall incur Indebtedness for borrowed money (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timeexcluding Indebtedness permitted pursuant to Section 8.1), the Borrowers shall Borrower shall, in accordance with Section 4.4(c), prepay on such day the principal of outstanding Revolving Credit Term Loans in an amount equal to 100.0% of the Net Cash Proceeds thereof minus the portion of such excess. If, after giving effect Net Cash Proceeds applied (to the extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans, in each case with such prepayment to be 10023685561003003016v52 #8894688589588927v75 made on or before the fifth Business Day following notice given to each Lender of all outstanding the Prepayment Date, as contemplated by Section 4.4(d), and (iii) the Borrower shall, in accordance with Section 4.4(c), prepay the Term Loans within 120 days following the last day of the immediately preceding Fiscal Year (commencing with the Fiscal Year ending on or about September 30, 2014) (each, an “ECF Payment Date”), in an amount equal to (A) (1) 50.0% (as may be adjusted pursuant to the last proviso of this clause (iii)) of the Borrower’s Excess Cash Flow for such Fiscal Year minus (2) the sum of (w) the aggregate principal amount of Term Loans (including Incremental Term Loans) repaid pursuant to Section 2.2(b), 2.2(c) or, 2.2(d) or 2.2(e), prepaid pursuant to Section 4.4(a) or repaid or purchased pursuant to Section 11.6(h) (limited to the amount paid in cash) and Pari Passu Indebtedness (other than the loans under the Senior Revolving Credit Facility) (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, redeemed, repurchased or repaid pursuant to a scheduled principal payment, in each case during such Fiscal Year or in the case of voluntary prepayments of Tranche B Term Loans pursuant to Section 4.4(a) made on or after the Second Amendment Date and on or prior to the Trigger Date, during a previous Fiscal Year (to the extent such voluntary prepayments have not previously been applied to reduce the amount of prepayment required to be made by the Borrower pursuant to Section 4.4(b)(iii) in a previous Fiscal Year or to reduce scheduled amortization of the Tranche B Term Loans) (which, in any event, shall not include any designated prepayment pursuant to clause (x) below), (x) the aggregate principal amount of Term Loans (including Incremental Term Loans) prepaid pursuant to Section 4.4(a) and Pari Passu Indebtedness (other than the L/C Obligations exceeds loans under the Borrowing Base at Senior Revolving Credit Facility) (in the case of revolving loans, to the extent accompanied by a corresponding permanent commitment reduction) voluntarily prepaid, redeemed, repurchased or repaid during the period beginning with the day following the last day of such time (based Fiscal Year and ending on the Borrowing Base Certificate ECF Payment Date and stated by the Borrower as prepaid pursuant to this Section 4.4(b)(iii) (provided that no prepayments made pursuant to Section 4.4(h) or the other clauses of this Section 4.4(b) shall be included in Section 4.4(b)(iii)(A)(2)(w) or (x)), (y) any loans under the Senior Revolving Credit Facility prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior Revolving Credit Facility during such Fiscal Year (which, in any event, shall not include any designated prepayment pursuant to clause (z) below), and (z) the aggregate principal amount of loans under the Senior Revolving Credit Facility prepaid to the extent accompanied by a corresponding permanent commitment reduction under the Senior Revolving Credit Facility during the period beginning with the day following the last deliveredday of such Fiscal Year and ending on the ECF Payment Date and stated by the Borrower as prepaid pursuant to this Section 4.4(b)(iii), in each case, excluding prepayments funded with proceeds from the incurrence of long-term Indebtedness (the amount described in this clause (A), the Borrowers shall pay “ECF Prepayment Amount”) minus (B) the portion of such ECF Prepayment Amount applied (to the Administrative Agent extent Borrower or any of its Subsidiaries is required by the terms thereof) to prepay, repay or purchase Pari Passu Indebtedness on a pro rata basis with the Term Loans; provided that such percentage in clause (1) above shall be reduced to (x) 25% if the Senior Secured Indebtedness to EBITDA Ratio as of the last day an amount of cash and/or Cash Equivalents the immediately preceding Fiscal Year was less than or equal to 3.75:1.00 and greater than 3.50:1.00 and greater than 3.00:1.00 and (y) 0% if the amount Senior Secured Indebtedness to EBITDA Ratio as of such excess (up to a maximum amount the last day of the immediately preceding Fiscal Year was less than or equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations 3.03.50:1.00. Nothing in this Section 4.4(b) shall limit the rights of the Borrowers to the Issuing Lenders Agents and the Revolving Credit Lenders hereunder set forth in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.Section 9. 10023685561003003016v52 #8894688589588927v75
(c) The Borrowers Subject to the last sentence of Section 4.4(d) and Section 4.4(g), each prepayment of Term Loans pursuant to Section 4.4(b) shall prepay be allocated pro rata among the Initial Term Loans, Tranche B Term Loans, Tranche C Term Loans, Tranche D Term Loans, the Incremental Term Loans and the Extended Term Loans; provided, that at the request of the Borrower, in lieu of such application on a pro rata basis among all Swingline Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding simultaneously or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to Section 4.4(a) and (b) shall be applied within each Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity). Notwithstanding any other provision of this Section 4.4, a Lender may, at its option, and if agreed by the Borrower, in connection with each borrowing by them any prepayment of Revolving Credit LoansTerm Loans pursuant to Section 4.4(a) or (b), exchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents); provided that the Administrative Agent shall have no duties or obligations to manage such Rollover Indebtedness.
(d) Prepayments pursuant to Subsection 4.4(b) The Borrower shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory give notice to the Administrative AgentAgent of any mandatory prepayment of the Term Loans (x) pursuant to Section 4.4(b)(iii), three Business Days prior to the date on which such payment is due and (y) pursuant to Section 4.4(b)(i) or (ii), promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make or will make such mandatory prepayment (i) in the case of mandatory prepayments pursuant to Section 4.4(b)(i), on or before the date specified in Section 8.3(c), and (ii) in the case of mandatory prepayments pursuant to Section 4.4(b)(ii) or (iii), on or before the date specified in Section 4.4(b)(ii) or (iii), as the case may be (each, a “Prepayment Date”). Once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the Prepayment Date (except as otherwise provided in the last sentence of this Section 4.4(d)). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately give notice to each Lender of the prepayment and the Prepayment Date. The Borrower (in its sole discretion) may give each Lender the option (in its sole discretion) to elect to decline any such prepayment pursuant to Section 4.4(b)(i) or (iii) by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date. Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to the payment or prepayment of Indebtedness, including the Holdings Notes, the Existing Unsecured Notes and any Subordinated Indebtedness, or otherwise be retained by the Borrower and its Restricted Subsidiaries and/or applied by the Borrower or any of its Restricted Subsidiaries in any manner not inconsistent with this Agreement. In connection with any mandatory prepayments by the Borrower pursuant to Section 4.4(b), such prepayments shall be applied on a pro rata basis to the then outstanding Term Loans being prepaid irrespective of whether such outstanding Term Loans are ABR Loans or Eurodollar Loans; provided that if no Lenders exercise the right to decline a mandatory prepayment pursuant to Section 4.4(b), then, with respect to such mandatory 10023685561003003016v52 #8894688589588927v75 prepayment, the amount of such mandatory prepayment shall be applied first to Term Loans that are ABR Loans to the full extent thereof before application to Term Loans that are Eurodollar Loans.
(e) For avoidance Amounts prepaid on account of doubtTerm Loans pursuant to Section 4.4(a), the Commitments shall (b) or (h) may not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b)reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection Section 4.4, if at any time any prepayment of the Term Loans pursuant to Subsection Section 4.4(a) or 4.4(b(b) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection Section 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such the Borrower) or (ii) make a prepayment of the Revolving Credit Term Loans in accordance with Subsection Section 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection Section 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid. In addition, if the Borrower reasonably determines in good faith that any amounts attributable to Foreign Subsidiaries that are required to be applied to prepay Term Loans pursuant to Section 4.4(b)(i) or (iii) would violate applicable Laws or result in material adverse tax consequences to the Borrower or any of its Restricted Subsidiaries, then the Borrower shall not be required to prepay such amounts as required thereunder; provided that the Borrower and its Subsidiaries shall take commercially reasonable actions to repatriate the proceeds subject to such prepayments in order to effect such prepayments without violating applicable Laws or incurring material adverse tax consequences.
(g) Notwithstanding anything to the contrary herein, this Subsection Section 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Term Loans added pursuant to Subsections 2.6, 2.7 Sections 2.6 and 2.8, as applicable., or pursuant to any other credit facility added pursuant to Section 2.6 or 11.1(e). 10023685561003003016v52 #8894688589588927v75
Appears in 1 contract
Samples: Incremental Commitment Amendment (Warner Music Group Corp.)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time time, upon notice to the Administrative Agent, prepay the Loans made to it and the Reimbursement Obligations Unreimbursed Amounts in respect of Letters of Credit and Bankers' Acceptances issued or documented for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable provided that such notice must be received by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time not later than 1:00 p.m. (i) three Business Days prior to any date of prepayment of Eurocurrency Loans denominated in Dollars, (ii) four Business Days (or five Business Days, in the case of prepayment of Loans denominated in Special Notice Currencies) prior to any date of prepayment of Eurocurrency Loans denominated in Alternative Currencies, and (iii) on the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Base Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such Each such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether (as determined at the Borrower's sole election and discretion) the prepayment is (i) of Term A Loans, Revolving Credit Loans or Swingline Swing Line Loans, or a combination thereof, and (ii) in the case of Eurodollar Revolving Loans, BA Equivalent of the relevant Borrowing of such Loans to be repaid, and (iii) of Eurocurrency Loans, ABR Loans or Canadian Prime Base Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement ObligationsUnreimbursed Amounts, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit or Bankers' Acceptance or Bankers' Acceptances and the amount allocable to each of such Reimbursement ObligationsUnreimbursed Amounts. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof; in the event such prepayment is of a Loan denominated in an Alternative Currency, the Administrative Agent shall also notify each Alternative Currency Funding Lender with respect to such Loan of its Alternative Currency Funding Pro Rata Share of such payment. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 4.10 and, in the case of prepayments of the Term Loans only, accrued interest to such date on the amount prepaid. Notwithstanding the foregoing, the Borrower may rescind or postpone any notice of prepayment under this subsection 4.2(a) if such prepayment would have resulted from a refinancing of the Loans, which refinancing shall not have been consummated or shall have otherwise been delayed. Partial prepayments of (i) the Term Loans pursuant to this subsection shall be applied to the respective installments of principal thereof as directed by the Borrower in its prepayment notice (as determined at the Borrower's sole election and discretion), and (ii) the Revolving Credit Loans and the Reimbursement Obligations Unreimbursed Amounts pursuant to this Section subsection shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Swing Line Loans then outstanding, second, to payment of the Borrowing of Revolving Credit Loans then outstandingdesignated by the Borrower, third, to payment of any Reimbursement Obligations Unreimbursed Amounts then outstanding and, last, to cash collateralize Cash Collateralize any outstanding L/C C-BA Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(asubsection 4.2(a) shall be in multiples an aggregate principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(a) If on or Cdn$1,000,000after the Effective Date (i) the Borrower or any of its Subsidiaries shall incur Indebtedness for borrowed money (other than Indebtedness permitted pursuant to subsection 8.2) pursuant to a public offering or private placement or otherwise, (ii) the Borrower or any of its Subsidiaries shall make an Asset Sale pursuant to subsection 8.6(i), (iii) a Recovery Event occurs or (iv) the Borrower or any of its Subsidiaries shall enter into a Sale and Leaseback Transaction, then, in each case, the Borrower shall prepay, in accordance with subsection 4.2(d), the Term A Loans and, if so provided in the applicable Incremental Facility Amendment, the Incremental Term Loans if any then outstanding in an amount equal to (x) in the case of the incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof, (y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts in accordance with the terms thereof, and (z) in the case of any such Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds (except, in each case, as applicable, provided in subsection 4.2(g) and except that, notwithstanding in the foregoingcase of clauses (y) and (z), if any Loan may such Net Cash Proceeds are eligible to be prepaid reinvested in its entiretyaccordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Borrower has not elected to reinvest such proceeds, such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Borrower to such effect is delivered to the Administrative Agent in accordance with such definition and (2) the last day of the period within which a certificate setting forth such election is required to be delivered in accordance with such definition). Nothing in this paragraph (b) shall limit the rights of the Administrative Agent and the Lenders set forth in Section 9.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent[Intentionally omitted.]
(c) The Borrowers Prepayments pursuant to subsection 4.2(b) shall be applied first to prepay all Swingline Term A Loans and, if so provided in the applicable Incremental Facility Amendment, Incremental Term Loans, if any then outstanding simultaneously with each borrowing by them of on a pro rata basis, and second to prepay Revolving Credit Loans. Prepayments of Term A Loans and Incremental Term Loans, if any, pursuant to subsection 4.2(b) shall be applied pro rata to the respective installments of principal thereof (excluding from such calculation the final payment due at maturity), provided that, any such payment may, at the option of the Borrower, be first applied to the installments thereof due in the next twelve months and, thereafter, the remainder of such prepayment shall be allocated and applied pro rata (excluding from such calculation the final payment due at maturity).
(d) Prepayments Amounts prepaid on account of Term Loans pursuant to Subsection 4.4(bsubsection 4.2(a), or 4.2(b) shall may not be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agentreborrowed.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4subsection 4.2, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(a) subsection 4.2(b), or 4.4(b4.2(g) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection 4.12 subsection 4.10 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), ) to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans, as the case may be, have or has been prepaid.
(gf) Notwithstanding anything to the contrary hereinin subsection 4.2(b), this Subsection 4.4 may 4.2(d) or 4.6, with respect to the amount of any mandatory prepayment described in subsection 4.2 that is to be amended applied to Term Loans (such amount, the “Term Loan Prepayment Amount”), at any time when Term Loans remain outstanding and the Lenders hereby irrevocably authorize Term Loan Prepayment Amount is not sufficient to repay the principal amount of the Term Loans in full, the Borrower will, in lieu of applying such amount to the prepayment of Term Loans, as provided in subsection 4.2(b) or 4.2(d) above, on the date specified in this subsection 4.2 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) thereof and the Administrative Agent shall prepare and provide to enter into each Term Loan Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit I, and shall include an offer by the Borrower to prepay on the date (each a “Prepayment Date”) that is five Business Days after the date of the Prepayment Option Notice, the Term Loans of such Lender in an amount equal to such Xxxxxx's Applicable Percentage of the Term Loan Prepayment Amount (the “Individual Term Loan Prepayment Amount”). In the event any such amendments) Lender desires to accept the Borrower's offer in whole or in part, such Lender shall so advise the Administrative Agent by return notice no later than the close of business two Business Days after the date of such notice from the Administrative Agent, which return notice shall also include any amount of such Xxxxxx's Individual Term Loan Prepayment Amount such Lender does not wish to receive. If any Lender does not respond to the extent Administrative Agent within the allotted time or indicate the amount of the Individual Term Loan Prepayment Amount it does not wish to receive, such Lender will be deemed to have accepted the Borrower's offer in whole and shall receive 100% of its Individual Term Loan Prepayment Amount. On the Prepayment Date the Borrower shall prepay the Term Loan Prepayment Amount, and (i) the aggregate amount thereof necessary to reflect differing amounts payableprepay that portion of the outstanding relevant Term Loans in respect of which such Term Loan Lenders have accepted prepayment as described above shall be applied to the prepayment of the Term Loans, and priorities (ii) the aggregate amount (if any) equal to the portion of paymentsthe Term Loan Prepayment Amount not accepted by the relevant Term Loan Lenders shall be returned to the Borrower. The Borrower may, to Lenders participating in any new classes or tranches but shall not be obligated to, make a voluntary prepayment of loans added the Term Loans pursuant to Subsections 2.6subsection 4.2(a) with that portion of the Term Loan Prepayment Amount not accepted by the relevant Term Loan Lenders.
(g) If the Administrative Agent notifies the Borrower at any time that the Outstanding Amount of all Loans denominated in Alternative Currencies at such time exceeds an amount equal to 105% of the Alternative Currency Sublimit then in effect, 2.7 then, within five Business Days after receipt of such notice, the Borrower shall prepay Loans in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Alternative Currency Sublimit then in effect.
(h) If the Administrative Agent notifies the Borrower at any time that the Total Revolving Credit Outstandings at such time exceed an amount equal to 105% of the Aggregate Revolving Credit Commitments then in effect, then, within five Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or Cash Collateralize the L/C-BA Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Revolving Credit Commitments then in effect; provided, however, that, subject to the provisions of subsection 4.6(e)(i)(B), the Borrower shall not be required to Cash Collateralize the L/C-BA Obligations pursuant to this subsection 4.2(i) unless, after the prepayment in full of the Loans, the Total Revolving Credit Outstandings exceed the Aggregate Revolving Credit Commitments then in effect. The Administrative Agent may, at any time and 2.8from time to time after the initial deposit of such Cash Collateral, as applicablerequest that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountit, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.2:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans Loans) or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day ). Such notice shall be irrevocable notice by the Borrower Representative to the Administrative Agent (except as provided in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)Subsection 4.4(e). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligationseach. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(e)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section and shall (unless the Parent Borrower Representative otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, applied to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 100,000 (in the case of Revolving Credit Loans outstanding in Dollars), €100,000 (in the case of Revolving Credit Loans outstanding in Euro) or Cdn$1,000,000the Dollar Equivalent of at least $100,000 (in the case of Revolving Credit Loans outstanding in a Designated Foreign Currency other than Euro), as applicable, ; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total aggregate Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, Loans made under Subsections Subsection 4.4(b).
(fd) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, prepayment must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided thatprovided, in the case of either clause (i) or (ii)further, that such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(ge) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(f) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans Loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Samples: Credit Agreement (CHC Group Ltd.)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Parent Borrower may at any time and from time to time prepay the Loans made to it and and, in accordance with subsection 3.05, the Reimbursement Obligations Amounts in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Parent Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Eurocurrency Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currencyoutstanding), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day Day’s irrevocable notice by the Parent Borrower Representative to the Administrative Agent (in the case of (x) Swingline ABR Loans and (y) Reimbursement Obligations Amounts outstanding in Dollars or a Designated Foreign Currency)Dollars). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement ObligationsAmounts, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement ObligationsAmounts. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 4.12 and accrued interest to such date on the Revolving Credit amount prepaid. Partial prepayments of (1) the Term Loans and the Reimbursement Obligations pursuant to this Section subsection shall (unless be applied pro rata to the respective installments of principal thereof, provided that notwithstanding the foregoing, any such partial prepayment may, at the option of the Parent Borrower otherwise directs) Borrower, be applied, first, first allocated to payment the Term Loans pro rata based upon the aggregate amount of the Swingline Loans installments thereof due in the next twelve months and then outstandingthe remainder of such partial prepayment shall be allocated and applied as set forth above, second, and (2) the Reimbursement Amounts pursuant to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, this subsection shall be applied to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, 1,000,000; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On If on or after the Closing Date (i) the Parent Borrower or any day of its Subsidiaries shall incur Indebtedness for borrowed money (other than during Indebtedness permitted pursuant to subsection 8.2, except as otherwise specified in subsection 8.2) pursuant to a public offering or private placement or otherwise, (ii) the Parent Borrower or any of its Subsidiaries (other than any Special Purpose Subsidiary) shall make an Agent Advance PeriodAsset Sale pursuant to subsection 8.6(h), (iii) on which a Recovery Event occurs or (iv) the Aggregate Lender Exposure Parent Borrower or any of its Subsidiaries shall enter into a Sale and Leaseback Transaction, then, in each case, if and to the extent the applicable Net Cash Proceeds are not required to be applied to the payment of obligations of the Parent Borrower or the unpaid balance of Extensions of Credit to, or for other borrowers under the account ofABL Facility, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such timeParent Borrower shall prepay, in accordance with subsection 4.4(d), the Borrowers shall prepay on such day Loans and cash collateralize the principal of outstanding Revolving Credit Loans L/C Obligations in an amount equal to: (x) in the case of the incurrence of any such Indebtedness, 100% of the Net Cash Proceeds thereof; (y) in the case of any such Asset Sale or Recovery Event, 100% of the Net Cash Proceeds thereof minus any Reinvested Amounts; and (z) in the case of any such Sale and Leaseback Transaction, 100% of the Net Cash Proceeds thereof, in each case with such prepayment to be made on the Business Day following the date of receipt of any such Net Cash Proceeds except that, in the case of clause (y), if any such Net Cash Proceeds are eligible to be reinvested in accordance with the definition of the term “Reinvested Amount” in subsection 1.1 and the Parent Borrower has not elected to reinvest such proceeds (or portion thereof, as the case may be), such prepayment to be made on the earlier of (1) the date on which the certificate of a Responsible Officer of the Parent Borrower to such excesseffect is delivered to the Administrative Agent in accordance with such definition and (2) the last day of the period within which a certificate setting forth such election is required to be delivered in accordance with such definition). IfNothing in this paragraph (b) shall limit the rights of the Agents and the Lenders set forth in Section 9.
(c) Commencing March 31, after giving effect to 2007, and on each March 31 thereafter, the Parent Borrower shall, in accordance with subsection 4.4(d), apply toward the prepayment of all outstanding Revolving Credit Loans, the aggregate amount Loans and the cash collateralization of the L/C Obligations exceeds the Borrowing Base at such time (based ECF Percentage of the Parent Borrower’s Excess Cash Flow for the fiscal year ending on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loansimmediately preceding December 31.
(d) Prepayments pursuant to Subsection subsections 4.4(b) and (c) shall be applied, first, to prepay Swingline Term Loans then outstanding, outstanding and second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all any outstanding L/C Obligations in an amount equal to 100% of such outstanding L/C Obligations on terms reasonably satisfactory to the Administrative Agent. Prepayments of Term Loans pursuant to subsections 4.4(b) and (c) shall be applied pro rata to the respective installments of principal thereof; provided that notwithstanding the foregoing, any such payment may, at the option of the Parent Borrower, be first allocated to the Term Loans pro rata based upon the aggregate amount of the installments thereof due in the next twelve months and, thereafter, the remainder of such prepayment shall be allocated and applied as provided above.
(e) For avoidance Amounts prepaid on account of doubtTerm Loans pursuant to subsection 4.4(a), the Commitments shall 4.4(b) or 4.4(c) may not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b)reborrowed.
(f) Notwithstanding the foregoing provisions of this Subsection subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any the Parent Borrower incurring breakage costs under Subsection subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Parent Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Parent Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such the Parent Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Eurocurrency Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(gi) Notwithstanding anything Upon at least three Business Days’ prior written notice (or telephonic notice promptly confirmed in writing) to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent (which notice Administrative Agent shall promptly transmit to enter into each of the Lenders), the Parent Borrower shall have the right, without premium or penalty, on any day, permanently to reduce the Letter of Credit Commitments in whole or in part, provided that (A) any partial reduction pursuant to this subsection 4.4(g) shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount and (B) after giving effect to such amendmentsreduction and to any cancellation or cash collateralization of Letters of Credit made on the date thereof in accordance with this Agreement, the aggregate amount of the Lenders’ Letter of Credit Exposures shall not exceed the Total Credit Linked Deposit and (ii) upon any prepayment, repayment or other satisfaction, whether in part or in full, of any Assumed Indebtedness with a maturity date that is scheduled to occur on or before August 15, 2007, with proceeds other than from Delayed Draw Term Loans, the Delayed Draw Term Loan Commitments shall nonetheless automatically reduce on a dollar-for-dollar basis in an amount equal to such prepayment, repayment or the aggregate amount of the obligation otherwise satisfied, such reduction being applied pro rata to each Lender then holding a Delayed Draw Term Loan Commitment. In the event the Letter of Credit Commitments shall be reduced as provided in the immediately preceding sentence, the Administrative Agent shall reduce the Total Credit Linked Deposits in a corresponding amount, and return all amounts in the Credit Linked Deposit Account in excess of the reduced Total Credit Linked Deposit to the extent necessary L/C Participants ratably in accordance with their Letter of Credit Percentage of the Total Credit Linked Deposit (as determined immediately prior to reflect differing amounts payablesuch reduction).
(h) The Parent Borrower shall have the right, and priorities of paymentsupon not less than three Business Days’ notice to the Administrative Agent (which will promptly notify the Lenders thereof), to Lenders participating terminate the Delayed Draw Term Loan Commitments or, from time to time, to reduce the amount of the Delayed Draw Term Loan Commitments. Any such reduction shall be in any new classes an amount equal to $5,000,000 or tranches a whole multiple of loans added pursuant to Subsections 2.6, 2.7 $1,000,000 in excess thereof and 2.8, as applicableshall reduce permanently the Delayed Draw Term Loan Commitments then in effect.
Appears in 1 contract
Samples: Credit Agreement (Hertz Corp)
Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountit, in whole or in part, subject to Subsection 4.12subsection 3.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyEurocurrencyTerm SOFR Loans), and prior to 11:00 A.M.2:00 P.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, specify (i) the date and amount of prepayment, (ii) the Tranche or Tranches of Loans to be prepaid (and, if more than one Tranche is to be prepaid, the allocation of such prepayment among such Tranches), and (iii) whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent EurocurrencyTerm SOFR Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each andeach. Any such notice may state that such notice is conditioned upon the occurrence or non- occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the case of any prepayment of Reimbursement Obligations, Borrower (by written notice to the date and amount of prepayment, Administrative Agent on or prior to the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of specified effective date) if such Reimbursement Obligationscondition is not satisfied. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is givengiven and is not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent EurocurrencyTerm SOFR Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, subsection 3.12 and accrued interest to such date on the Revolving Credit amount prepaid. Partial prepayments of Loans and the Reimbursement Obligations pursuant to this Section subsection 3.4(a) shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory applied to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) respective installments of principal of such Loans in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basissuch order as the Borrower may direct. Partial prepayments pursuant to this Subsection 4.4(asubsection 3.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, 1.0 million; provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety. If at any time after the Restatement Effective Date and on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection 3.4(a) makes an optional prepayment in full of the Initial Term Loans pursuant to a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender of Initial Term Loans, a prepayment premium of 1.00% of the aggregate principal amount of Initial Term Loans being prepaid. If at any time after the Seventh Amendment Effective Date and on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection 3.4(a) makes an optional prepayment in full of the Initial Term Loans pursuant to a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender of Initial Term Loans, a prepayment premium of 1.00% of the aggregate principal amount of Initial Term Loans being prepaid. If at any time after the Sixth Amendment Effective Date and on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection 3.4(a) makes an optional prepayment in full of the Incremental B-2019 Term Loans pursuant to a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender of Incremental B-2019 Term Loans, a prepayment premium of 1.00% of the aggregate principal amount of Incremental B-2019 Term Loans being prepaid. If at any time after the Ninth Amendment Effective Date and on or prior to the six-month anniversary thereof, the Borrower pursuant to this subsection 3.4(a) makes an optional prepayment in full of the Incremental B-2021 Term Loans pursuant to a Repricing Transaction, the Borrower shall pay to the Administrative Agent, for the ratable account of each Lender of Incremental B-2021 Term Loans, a prepayment premium of 1.00% of the aggregate principal amount of Incremental B-2021 Term Loans being prepaid. If at any time after the Seventh Amendment Effective Date and on or prior to the six month anniversary thereof any Lender of Initial Term Loans is replaced pursuant to subsection 10.1(g) or 10.1(h) in connection with any amendment of this Agreement (including in connection with any refinancing transaction permitted under subsection 10.6(g) to replace the Initial Term Loans) that results in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to subsection 10.1(g) or 10.1(h)) shall receive a fee equal to 1.00% of the principal amount of the Initial Term Loans of such Lender assigned to a replacement Lender pursuant to subsection 10.1(g) or 10.1(h). If at any time after the Sixth Amendment Effective Date and on or prior to the six month anniversary thereof any Lender of Incremental B-2019 Term Loans is replaced pursuant to subsection 10.1(g) or 10.1(h) in connection with any amendment of this Agreement (including in connection with any refinancing transaction permitted under subsection 10.6(g) to replace the Incremental B-2019 Term Loans) that results in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to subsection 10.1(g) or 10.1(h)) shall receive a fee equal to 1.00% of the principal amount of the Incremental B-2019 Term Loans of such Lender assigned to a replacement Lender pursuant to subsection 10.1(g) or 10.1(h). If at any time after the Ninth Amendment Effective Date and on or prior to the six month anniversary thereof any Lender of Incremental B-2021 Term Loans is replaced pursuant to subsection 10.1(g) or 10.1(h) in connection with any amendment of this Agreement (including in connection with any refinancing transaction permitted under subsection 10.6(g) to replace the Incremental B-2021 Term Loans) that results in a Repricing Transaction, such Lender (and not any Person who replaces such Lender pursuant to subsection 10.1(g) or 10.1(h)) shall receive a fee equal to 1.00% of the principal amount of the Incremental B-2021 Term Loans of such Lender assigned to a replacement Lender pursuant to subsection 10.1(g) or 10.1(h).
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent[Reserved.]
(c) The Borrowers shall Borrower shall, in accordance with subsections 3.4(d) and 3.4(e), prepay all Swingline the Term Loans then outstanding simultaneously with each borrowing to the extent required by them of Revolving Credit Loanssubsection 7.4(b)(ii) (subject to subsection 7.4(c)).
(d) Prepayments Subject to the last sentence of subsection 3.4(f) and subsection 3.4(j), each prepayment of Term Loans pursuant to Subsection 4.4(bsubsection 3.4(c) shall be appliedallocated pro rata among the Initial Term Loans, the Incremental Term Loans, the Extended Term Loans and the Specified Refinancing Term Loans; provided that, at the request of the Borrower, in lieu of such application on a pro rata basis among all Tranches of Term Loans, such prepayment may be applied to any Tranche of Term Loans so long as the maturity date of such Tranche of Term Loans precedes the maturity date of each other Tranche of Term Loans then outstanding or, in the event more than one Tranche of Term Loans shall have an identical maturity date that precedes the maturity date of each other Tranche of Term Loans then outstanding, to such Tranches on a pro rata basis. Each prepayment of Term Loans pursuant to subsection 3.4(a) shall be applied within each applicable Tranche of Term Loans to the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given, in direct order of maturity. Each prepayment of Term Loans pursuant to subsection 3.4(c) shall be applied within each applicable Tranche of Term Loans, first, to prepay Swingline the accrued interest on the principal amount of Term Loans then outstandingbeing prepaid and, second, to prepay Revolving Credit the respective installments of principal thereof in the manner directed by the Borrower (or, if no such direction is given in direct order of maturity). Notwithstanding any other provision of this subsection 3.4, a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans then outstandingpursuant to subsection 3.4(a) or 3.4(c), thirdexchange such Lender’s portion of the Term Loan to be prepaid for Rollover Indebtedness, to pay in lieu of such Lender’s pro rata portion of such prepayment (and any Reimbursement Obligations then outstanding and, last, to cash collateralize such Term Loans so exchanged shall be deemed repaid for all L/C Obligations on terms reasonably satisfactory to purposes under the Administrative AgentLoan Documents).
(e) For avoidance The Borrower shall give notice to the Administrative Agent of doubtany mandatory prepayment of the Term Loans pursuant to subsection 3.4(c) promptly (and in any event within five Business Days) upon becoming obligated to make such prepayment. Such notice shall state that the Borrower is offering to make such mandatory prepayment on or before the date specified in subsection 7.4 (any such date of prepayment, a “Prepayment Date”). Subject to the following sentence, once given, such notice shall be irrevocable and all amounts subject to such notice shall be due and payable on the relevant Prepayment Date as required by subsection 3.4 (except as otherwise provided in the last sentence of this subsection 3.4(e). Any such notice of prepayment pursuant to subsection 3.4(c) may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Borrower (by written notice to the Administrative Agent, on or prior to the specified effective date) if such condition is not satisfied. Upon receipt by the Administrative Agent of such notice, the Commitments Administrative Agent shall not immediately give notice to each Lender of the prepayment and the relevant Prepayment Date. In the case of any prepayment pursuant to subsection 3.4(c), each Lender may (in its sole discretion) elect to decline any such prepayment by giving notice of such election in writing to the Administrative Agent by 11:00 A.M., New York City time, on the date that is three Business Days prior to the Prepayment Date (or such shorter period as may be correspondingly reduced agreed to by the Administrative Agent in its reasonable discretion). Upon receipt by the Administrative Agent of such notice, the Administrative Agent shall immediately notify the Borrower of such election. Any amount so declined by any Lender may, at the option of the Borrower, be applied to pay or prepay other obligations under the other Credit Facilities, or otherwise be retained by the Borrower and its Subsidiaries or applied by the Borrower or any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, its Restricted Subsidiaries in each case, made under Subsections 4.4(b)any manner not inconsistent with this Agreement.
(f) Amounts prepaid on account of Term Loans pursuant to subsection 3.4(a), 3.4(b) or 3.4(c) may not be reborrowed.
(g) Notwithstanding the foregoing provisions of this Subsection 4.4subsection 3.4, if at any time any prepayment of the Term Loans pursuant to Subsection 4.4(asubsection 3.4(a) or 4.4(b3.4(c) would result, after giving effect to the procedures set forth in this Agreement, in any the Borrower incurring breakage costs under Subsection 4.12 subsection 3.12 as a result of Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, then the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans not immediately prepaid), to be held as security for the obligations of such Borrowers the Borrower to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent Agent, with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans (or such earlier date or dates as shall be requested by such the Borrower) ); or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(asubsection 3.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans shall continue to bear interest in accordance with Subsection 4.1 subsection 3.1 until such unpaid Eurodollar Loans or BA Equivalent EurocurrencyTerm SOFR Loans or the related portion of such Eurodollar EurocurrencyTerm SOFR Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(gh) Notwithstanding anything to the contrary herein, this Subsection 4.4 may a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to subsection 3.4(a), exchange all or part of such Lender’s portion of the Term Loans to be amended prepaid for Rollover Indebtedness, in lieu of all or such part of such Lxxxxx’s pro rata portion of such prepayment (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to Term Loans so exchanged shall be deemed repaid for all purposes under the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicableLoan Documents).
Appears in 1 contract
Samples: Term Loan Credit Agreement (US Foods Holding Corp.)
Optional and Mandatory Prepayments. (a) Each The Borrower may on the last day of any Interest Period with respect thereto (or at other times with the Borrowers may payment of applicable breakage costs), in the case of Eurodollar Loans, or at any time and from time to time time, in the case of Alternate Base Rate Loans, prepay the Revolving Credit Loans, the Initial Term Loans, the Additional Term Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its accountany series, or any combination thereof, in whole or in part, subject to Subsection 4.12, without premium or penaltypenalty (except as set forth in Section 4.1(e) below), upon at least four Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.Agent, New York City time three Business Days prior to the date of prepayment specifying (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loansi) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and prepayment, (ii) whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Alternate Base Rate Loans or a combination thereof, and, in each case if of a combination thereof, the principal amount allocable to each each, (iii) whether the prepayment is of Revolving Credit Loans, Initial Term Loans, the Additional Term Loans of any series, or any combination thereof, and, in the case if of any prepayment of Reimbursement Obligationsa combination thereof, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each and (iv) if the prepayment includes Term Loans, the amount allocable, if any, to the Initial Term Loans or the Additional Term Loans of such Reimbursement Obligationseach series. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Applicable Lender thereof. If any such notice is given, the SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT amount specified in such notice shall be due and payable on the date specified therein, together with accrued interest to such date on the amount prepaid in the case of prepayment of Term Loans. Partial prepayments (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end x) of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples an aggregate principal amount of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, a whole multiple thereof and (y) of any Loan may Term Loans shall be prepaid in its entiretyan aggregate principal amount of $5,000,000 or a whole multiple thereof.
(b) On If on any day date (other than during an Agent Advance Period) including any date on which a certificate of a Responsible Officer of the Borrower is delivered pursuant to subsection 7.2(b)) the sum of the Aggregate Lender Exposure or the unpaid balance of Outstanding Revolving Credit Extensions of Credit tothen outstanding exceeds the then aggregate Revolving Credit Commitments, then, without notice or for the account ofdemand, the Borrowers exceeds Borrower shall promptly prepay the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. IfThe Borrower may, after giving effect subject to the prepayment terms and conditions of all outstanding Revolving Credit Loansthis Agreement, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to reborrow the amount of such excess (up to a maximum amount equal to such L/C Obligations at such timeany prepayment made under this subsection 4.1(b), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers application of any prepayment of Initial Term Loans or Additional Term Loans of any series pursuant to subsection 4.1(a) shall prepay all Swingline be made to the remaining installments of such Initial Term Loans then outstanding simultaneously with each borrowing by them or Additional Term Loans of Revolving Credit Loanssuch series, as applicable, in the inverse order of their maturity.
(d) Prepayments The application of any prepayment pursuant to Subsection 4.4(bsubsection 4.1(b) shall be applied, first, made first to prepay Swingline Alternate Base Rate Loans then outstanding, second, and second to prepay Revolving Credit Eurodollar Loans. Each prepayment of the Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory under subsection 4.1(b) (other than Alternate Base Rate Loans) shall be accompanied by accrued interest to the Administrative Agentdate of such prepayment on the amount prepaid.
(e) For avoidance With respect to any optional prepayment made by the Borrower in connection with the Initial Term Loans on or before the first anniversary of doubtthe Initial Term Loan Date, the Commitments Borrower shall not be correspondingly reduced by pay to the Administrative Agent, for the account of the applicable Initial Term Loan Lenders, a prepayment in an amount (including principal and premium) equal to 101% of the aggregate principal amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Initial Term Loans to be prepaid as set forth pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result notice of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory provided to the Administrative Agent with such cash collateral pursuant to be directly applied upon Section 4.1(a) above plus all accrued, unpaid interest to the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers Any Borrower may at any time and from time to time prepay any Loans (other than, to the extent that any other Loans made to it and are then outstanding, the Reimbursement Obligations in respect of Letters of Credit issued for its accountUnsecured Supplemental Loans), in whole or in part, subject to Subsection 4.12, without premium or penalty, upon at least three Business Days' irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least Domestic Sterling Loans) or one Business Day prior Day's irrevocable notice to the date of prepayment Agent (in the case of ABR Loans and Canadian Prime or Sterling Base Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans subsection 10.13 and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, except in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent prepayments of the Domestic Revolving Credit Loans or the related portion UK Revolving Credit Loans which are not accompanied by a permanent reduction of such Eurodollar Loans the Domestic Revolving Credit Commitments or BA Equivalent Loansthe UK Revolving Credit Commitments, as the case may be) accrued interest to such date on the amount prepaid. Partial prepayments of the Domestic Term Loans and the UK Term Loans shall be applied pro rata to the remaining installments of principal thereof. Amounts prepaid on account of the Domestic Term Loans, have the UK Term Loans and the Supplemental Loans may not be reborrowed. Partial prepayments under this subsection shall be in an aggregate principal amount of $500,000 or has been prepaida whole multiple of $100,000 in excess thereof (in the case of Domestic Loans) or (pound)350,000 or a whole multiple of (pound)100,000 in excess thereof (in the case of UK Loans).
(gb) Notwithstanding anything As promptly as practicable following the occurrence of any Prepayment Event (and, in any event, within one Business Day following the receipt by the Company or any of its Subsidiaries of the Net Cash Proceeds therefrom), the Borrowers shall prepay the Loans (in the manner, and to the contrary hereinextent, this Subsection 4.4 may be amended specified by subsection 10.2(f)) by the amount equal to 100% of such Net Cash Proceeds.
(and c) Within 90 days following the Lenders hereby irrevocably authorize last day of each fiscal year of the Administrative Agent Company and, in any event, not later than the date upon which the financial statements with respect to enter into any such amendments) fiscal year are delivered to the extent necessary Agent pursuant to reflect differing amounts payablesubsection 13.4(a) (commencing with the fiscal year ending December 31, 1997), the Borrowers shall prepay Loans (in the manner, and priorities to the extent, specified by subsection 10.2(f)) by the amount equal to 50% of paymentsExcess Cash Flow for such fiscal year; provided, however, that no such prepayment shall be required to Lenders participating be so made if the Leverage Ratio (calculated in any new classes accordance with the provisions of subsection 14.16) on the last day of the fiscal year in respect of which such prepayment would otherwise be required was less than or tranches of loans added pursuant equal to Subsections 2.6, 2.7 and 2.8, as applicable3.00 to 1.00.
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Remington Products Co LLC)
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection subsection 4.12, without premium or penalty, upon irrevocable notice (in substantially the form attached hereto as Exhibit E) by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.1:00 P.M., New York City time at least three Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyEurocurrency Loans), or prior to 11:00 1:00 P11:00 A.M., New York City time at least one Business Day prior to (or such later time as may be agreed by the Administrative Agent in its reasonable discretion) on the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice (prior to 4:00 P.M., New York City time) by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency)Dollars). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans, Incremental ABL Loans, Extended ABL Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Eurocurrency Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. Any such notice may state that such notice is conditioned upon the occurrence or non-occurrence of any event specified therein (including the effectiveness of other credit facilities), in which case such notice may be revoked by the Parent Borrower (by written notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied. If any such notice is givengiven and is not revoked, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection this subsection 4.12, . Partial prepayments of the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section subsection 4.4(a) shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000250,000 (in the case of Loans other than Swingline Loans) and in a minimum amount of $100,000, in the case of Swingline Loans, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than with respect to Agent Advances during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered)) or the total Commitments at such time, the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections subsection 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Eurocurrency Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Eurocurrency Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Eurocurrency Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Eurocurrency Loans; provided that, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans shall continue to bear interest in accordance with Subsection subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Eurocurrency Loans or the related portion of such Eurodollar Loans or BA Equivalent Eurocurrency Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans (or other credit or letter of credit facility) added pursuant to Subsections 2.6, 2.7 subsections 2.6 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of the Borrowers may at any time and from time to time prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M.1:00 P.M., New York City time at least three (3) Business Days prior to the date of prepayment (in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign CurrencyLoans), prior to 11:00 A.M.12:00 P.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign CurrencyDollars). Such notice shall be irrevocable except as provided in Subsection 4.4(g). Such notice shall specify, in the case of any prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans or ABR Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall (subject to Subsection 4.4(g)) be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,0001,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100100.0%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments Excess Availability to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii)) above, such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaid.
(g) If a notice of prepayment in connection with a repayment of all outstanding Loans is given in connection with a conditional notice of termination of Commitments as contemplated by Subsection 2.3, then such notice of prepayment may be revoked if such notice of termination is revoked in accordance with Subsection 2.3.
(h) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
Appears in 1 contract
Optional and Mandatory Prepayments. (a) Each of Subject to Section 3.02, ---------------------------------- the Borrowers may Company may, at any time and or from time to time by irrevocable notice to the Agent, not later than 11:00 a.m. (Houston time) (i) one Business Day prior to a prepayment of any CD Loan, (ii) three Business Days prior to a prepayment of any Offshore Loan, or (iii) on the Business Day of a prepayment of any Base Loan, ratably prepay the Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12, without premium in minimum amounts of $5,000,000 or penalty, upon irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date any multiple of prepayment ($1,000,000 in the case of Eurodollar Loans or BA Equivalent Loans and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior to the date of prepayment (in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency))excess thereof. Such notice of prepayment shall specifyspecify the date and amount of such prepayment, whether the Loans to be prepaid are Revolving Loans or Swingline Loans, the Type(s) of any Loans to be prepaid and the specific Borrowing or Borrowings pursuant to which such Loans were made. The Agent will promptly notify each Bank, in the case of any the prepayment of Loans, the identity of the prepaying Borrower, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each andSwingline Bank, in the case of any the prepayment of Reimbursement ObligationsSwingline Loans, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligations. Upon the its receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereofnotice, and of such Bank's Commitment Percentage of such prepayment, as applicable. If any such notice is givengiven by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Loan is prepaid other than at accrued interest to each such date on the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12, the Revolving Credit Loans and the Reimbursement Obligations pursuant to this Section shall (unless the Parent Borrower otherwise directs) be applied, first, to payment of the Swingline Loans then outstanding, second, to payment of the Revolving Credit Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(a) shall be in multiples of $1,000,000 or Cdn$1,000,000, as applicable, provided that, notwithstanding the foregoing, any Loan may be prepaid in its entiretyamount prepaid.
(b) On Immediately upon the occurrence of any day (other than during an Specified Transaction or at any time prior to the date that is 180 days after the date of consummation of such Specified Transaction, the Agent Advance Period) on which shall at the Aggregate Lender Exposure or request of, and may with the unpaid balance of Extensions of Credit to, or for the account consent of, the Borrowers exceeds the Borrowing Base Majority Banks, in their sole and absolute discretion, (based on the Borrowing Base Certificate last deliveredi) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect by notice to the prepayment Company pursuant to Section 10.02, declare the outstanding principal amount of all outstanding Revolving Credit Loans, together with accrued interest, amounts payable pursuant to Section 3.02 and all other amounts outstanding hereunder, to be immediately due and payable, whereupon such amounts shall immediately be paid by the aggregate amount Company, and (ii) by notice to the Company pursuant to Section 10.02, declare the obligation of each Bank to make Loans, including the obligation of the L/C Obligations exceeds the Borrowing Base at Swingline Bank to make Swingline Loans, be terminated, whereupon such time (based on the Borrowing Base Certificate last delivered), the Borrowers obligations shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agentterminated immediately.
(c) The Borrowers On the date of any increase in the total Commitments pursuant to Section 2.06, the Company shall prepay all Swingline Revolving Loans outstanding on such date, together with accrued interest thereon and amounts payable pursuant to Section 3.02; provided, however, that, notwithstanding the foregoing sentence, -------- if after giving effect to such an increase in the total Commitments there are no new Banks hereunder and the Commitment Percentage of each Bank is unchanged from its Commitment Percentage immediately prior to such increase, then the Company shall not be required to prepay any Revolving Loans and related amounts outstanding simultaneously with each borrowing by them of Revolving Credit Loanson such date.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
Any mandatory prepayment under subsection (e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result of Eurodollar Loans or BA Equivalent Loans being prepaid other than on the last day of an Interest Period with respect thereto, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrowerb) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%c) of this Section shall be made by the amounts that otherwise would have been paid Company without presentment, demand, protest or other notice of any kind, except as provided in respect of such Eurodollar Loans or BA Equivalent Loans subsection (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (iib), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or all of which are expressly waived by the related portion of such Eurodollar Loans or BA Equivalent Loans, as the case may be, have or has been prepaidCompany.
(g) Notwithstanding anything to the contrary herein, this Subsection 4.4 may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable.
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Optional and Mandatory Prepayments. (a) Each of the Borrowers The Borrower may at any time and from time to time prepay the Term A Loans and/or the Term B Loans made to it and the Reimbursement Obligations in respect of Letters of Credit issued for its account, in whole or in part, subject to Subsection 4.12subsection 3.12, without premium or penalty, upon at least three Business Days’ irrevocable notice by the Borrower Representative to the Administrative Agent prior to 11:00 A.M., New York City time three Business Days prior to the date of prepayment (in the case of Eurodollar Eurocurrency Loans or BA Equivalent Loans outstanding, and Reimbursement Obligations outstanding in any Designated Foreign Currency), prior to 11:00 A.M., New York City time at least one Business Day prior Day’s irrevocable notice by the Borrower to the date of prepayment (Administrative Agent in the case of ABR Loans and Canadian Prime Rate Loans other than Swingline Loans) or same-day irrevocable notice by the Borrower Representative to the Administrative Agent (in the case of (x) Swingline Loans and (y) Reimbursement Obligations outstanding in Dollars or a Designated Foreign Currency))outstanding. Such notice shall specify, in the case of any prepayment of Term Loans, whether such prepayment is of a Term A Loan or a Term B Loan, as the identity of the prepaying Borrowercase may be, the date and amount of prepayment and whether the prepayment is (i) of Revolving Credit Loans or Swingline Loans, or a combination thereof, and (ii) of Eurodollar Loans, BA Equivalent Eurocurrency Loans, ABR Loans or Canadian Prime Rate Loans or a combination thereof, and, in each case if a combination thereof, the principal amount allocable to each and, in the case of any prepayment of Reimbursement Obligations, the date and amount of prepayment, the identity of the applicable Letter of Credit or Letters of Credit and the amount allocable to each of such Reimbursement Obligationseach. Upon the receipt of any such notice the Administrative Agent shall promptly notify each affected Lender thereof. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein, together with (if a Eurodollar Loan or BA Equivalent Eurocurrency Loan is prepaid other than at the end of the Interest Period applicable thereto) any amounts payable pursuant to Subsection 4.12subsection 3.12 and accrued interest to such date on the amount prepaid. The Borrower may prepay either Term A Loans or Term B Loans, the Revolving Credit Loans and the Reimbursement Obligations or both, pursuant to this Section shall (unless subsection 3.4, and such prepayment need not be ratable as between the Parent Borrower otherwise directs) be applied, first, to payment Term A Loans and Term B Loans. Partial prepayments of the Swingline Term A Loans then outstanding, second, to payment of the Revolving Credit or Term B Loans then outstanding, third, to payment of any Reimbursement Obligations then outstanding and, last, to cash collateralize any outstanding L/C Obligation on terms reasonably satisfactory to the Administrative Agent; provided, further, that any pro rata calculations required to be made pursuant to this Subsection 4.4(a) in respect to any Loan denominated in a Designated Foreign Currency subsection shall be made on a Dollar Equivalent basis. Partial prepayments pursuant to this Subsection 4.4(aapplied (x) shall be in multiples of $1,000,000 or Cdn$1,000,000as between Term A Loans and Term B Loans, as if applicable, provided that, notwithstanding in the foregoing, any Loan may be prepaid in its entirety.
(b) On any day (other than during an Agent Advance Period) on which the Aggregate Lender Exposure or the unpaid balance of Extensions of Credit to, or for the account of, the Borrowers exceeds the Borrowing Base (based on the Borrowing Base Certificate last delivered) or the total Commitments at such time, the Borrowers shall prepay on such day the principal of outstanding Revolving Credit Loans in an amount equal to such excess. If, after giving effect to the prepayment of all outstanding Revolving Credit Loans, the aggregate amount of the L/C Obligations exceeds the Borrowing Base at such time (based on the Borrowing Base Certificate last delivered), the Borrowers shall pay to the Administrative Agent on such day an amount of cash and/or Cash Equivalents equal to the amount of such excess (up to a maximum amount equal to such L/C Obligations at such time), such cash and/or Cash Equivalents to be held as security for all obligations of the Borrowers to the Issuing Lenders and the Revolving Credit Lenders hereunder in a cash collateral account to be established by, and under the sole dominion and control of, the Administrative Agent.
(c) The Borrowers shall prepay all Swingline Loans then outstanding simultaneously with each borrowing by them of Revolving Credit Loans.
(d) Prepayments pursuant to Subsection 4.4(b) shall be applied, first, to prepay Swingline Loans then outstanding, second, to prepay Revolving Credit Loans then outstanding, third, to pay any Reimbursement Obligations then outstanding and, last, to cash collateralize all L/C Obligations on terms reasonably satisfactory to the Administrative Agent.
(e) For avoidance of doubt, the Commitments shall not be correspondingly reduced by the amount of any prepayments of Revolving Credit Loans, payments of Reimbursement Obligations and cash collateralizations of L/C Obligations, in each case, made under Subsections 4.4(b).
(f) Notwithstanding the foregoing provisions of this Subsection 4.4, if at any time any prepayment of the Loans pursuant to Subsection 4.4(a) or 4.4(b) would result, after giving effect to the procedures manner set forth in this Agreement, in any Borrower incurring breakage costs under Subsection 4.12 as a result the notice of Eurodollar prepayment and (y) with respect to the applicable Term A Loans or BA Equivalent Term B Loans being prepaid other than on repaid, at the last day option of an Interest Period with respect theretothe Borrower, then, the relevant Borrower may, so long as no Default or Event of Default shall have occurred and be continuing, in its sole discretion, initially (i) deposit a portion (up pro rata to 100%) the respective installments of the amounts that otherwise would have been paid in respect principal of such Eurodollar Term A Loans or BA Equivalent Loans with the Administrative Agent (which deposit must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid), to be held as security for the obligations of such Borrowers to make such prepayment pursuant to a cash collateral agreement to be entered into on terms reasonably satisfactory to the Administrative Agent with such cash collateral to be directly applied upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans (or such earlier date or dates as shall be requested by such Borrower) or (ii) make a prepayment of the Revolving Credit Loans in accordance with Subsection 4.4(a) with an amount equal to a portion (up to 100%) of the amounts that otherwise would have been paid in respect of such Eurodollar Loans or BA Equivalent Loans (which prepayment, together with any deposits pursuant to clause (i) above, must be equal in amount to the amount of such Eurodollar Loans or BA Equivalent Loans not immediately prepaid); provided that, notwithstanding anything in this Agreement to the contrary, none of the Borrowers may request any Extension of Credit under the Commitments that would reduce the aggregate amount of the Available Loan Commitments to an amount that is less than the amount of such prepayment until the related portion of such Eurodollar Loans or BA Equivalent Loans have been prepaid upon the first occurrence thereafter of the last day of an Interest Period with respect to such Eurodollar Loans or BA Equivalent Loans; provided that, in the case of either clause (i) or (ii), such unpaid Eurodollar Loans or BA Equivalent Loans shall continue to bear interest in accordance with Subsection 4.1 until such unpaid Eurodollar Loans or BA Equivalent Loans or the related portion of such Eurodollar Loans or BA Equivalent Term B Loans, as the case may be, have or has been prepaid(ii) to any of the respective installments of principal of such Term A Loans or Term B Loans, as the case may be, due in the next twelve months, and then (to the extent of any remainder) pro rata to the remaining respective installments thereof. Partial prepayments pursuant to this subsection 3.4(a) shall be in multiples of $1.0 million; provided that, notwithstanding the foregoing, the Term A Loans and the Term B Loans may be prepaid in their entirety.
(gb) Notwithstanding anything to Commencing on the contrary hereindate that is fifteen Business Days following December 31, this Subsection 4.4 may be amended 2008, and on each date that is fifteen Business Days following each December 31 thereafter, the Borrower shall, in accordance with subsection 3.4(d), apply toward the prepayment of the Term Loans the ECF Percentage of the Borrower’s Excess Cash Flow for the fiscal year ending on the immediately preceding September 30.
(and c) The Borrower shall, in accordance with subsection 3.4(d), prepay the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments) Term Loans to the extent necessary required by subsection 7.5(a)(iii)(B) (subject to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicablesubsection 7.5(b)).
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